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Guest Post: Air Strikes in Syria–Questions Surrounding the Necessity and Proportionality Requirements in the Exercise of Self-Defense

[Sina Etezazian serves as regional coordinator for the Digest of State Practice at the Journal on the Use of Force and International Law. He is also a PhD candidate at Monash Law School, where he is researching the necessity and proportionality criteria for the exercise of self-defense in international law.] The lawfulness of conducting air strikes against the Islamic State Group (IS) in Syria is attracting increasing scrutiny from legal commentators. This scrutiny has intensified markedly (for example, see here, here, here, and here) since the UK’s targeting of alleged IS terrorists using drones and France’s joining the air campaign to bomb IS positions in Syrian territory. The extent to which air strikes would meet the necessity and proportionality requirements in the exercise of the right to self-defense under Article 51, however, remains less explored. This post does not aim to consider the issue of the permissibility of engaging in unilateral forcible measures against unattributable attacks by private groups. However, even assuming that the lawful exercise of the right of self-defense extends to action against irregular forces, it can be argued that the air campaign in Syria goes beyond the necessity and proportionality conditions of defensive force. First, the operation in Syria would appear to act in direct contradiction to the legal obligations attached to the “no choice of means” criterion of necessity. As I have explained before (see here and here), “no choice of means” — or, as most legal writers have referred to it, the “last resort” — as a condition inherent in the necessity requirement, denotes that self-defense is available to the victim state only when measures not involving force are unlikely to be practicable and effective to cease an actual armed attack (or prevent an impending attack, supposing that one accepts the idea of anticipatory self-defense). This implies that if measures other than force are likely to be practicable in redressing the wrong caused by the attacker, the victim state may not be entitled to use force under Article 51. An exploration of state practice since the establishment of the UN would suggest that, in several instances (see here, here, and here), the claimant state highlighted its alleged failed attempts to convince the territorial state to suppress the activities of the non-state entities acting from that state, so as to prove that its self-defense action against those entities had satisfied the necessary requirement. Therefore, whatever the legal merit of the actions themselves (and regardless of whether, in practice, the responding states authentically used force outside an inter-state context), adherence to the “no choice of means” requirement can be distilled from state practice during the UN-era. Conversely, most states carrying out air strikes in Syria did not even consider cooperating with the Syrian government in suppressing the activities of IS militants in Syria. The United States, for example, explicitly rejected a request for such cooperation, maintaining that it is “not looking for the approval of the Syrian regime.” In its letter to the Security, Canada likewise stated that “in expanding our airstrikes into Syria, the government has now decided we will not seek the express consent of the Syrian government.” The approach taken by US and Canadian officials appears to be in clear violation of the necessity condition of defensive action, mainly because the US and Canada have not provided an explanation of why cooperating with the Syrian government seems impracticable to settle the problem. The use of force in Syria, accordingly, hardly seems compatible with the concept of “no choice of means” that states have shared during the UN-era. As for proportionality, the air campaign in Syria may be seen to have contravened the geographical requirement inherent in proportionate self-defense. Under the contemporary jus ad bellum regime, defensive action must conform to three criteria to determine its proportionality with regard to a primary objective of halting the attack: effects on civilians, the geographical scope and temporal duration of the conflict (Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004) 155–187). The second of these criteria, usually called the geographical criterion of proportionality, means that forcible self-defensive measures must be limited to the region of the attack that they are designed to repel. In other words, any coercive action that occurs far from the initial attack is likely to constitute a disproportionate use of force (Christopher Greenwood, ‘Self-Defence and the Conduct of International Armed Conflicts’ in International Law at a Time of Perplexity, Yoram Dinstein (ed) (1989) 276–278). Observance of the geographical criterion of proportionality has been required by both state practice and ICJ jurisprudence (see examples from state practice in Gardam, Necessity, Proportionality and the Use of Force by States, 162–167). For example, in the Armed Activities case, the Court refuted Uganda’s claim of self-defense against attacks from the private groups based in the Eastern Democratic Republic of Congo (DRC). More concretely, Uganda asserted that a string of attacks that had been mounted by those private groups across its border had justified Uganda’s right to use force in self-defense. However, Uganda had taken airports and towns in the DRC, which were located “many hundred kilometers” from Uganda’s border. This extensive forcible response gave rise to the majority judgment observing that the measures undertaken by Ugandan forces were disproportionate to those alleged cross-border attacks (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 223, 223). However, some commentators have occasionally argued for the diminishing role of the geographical criterion in the assessment of proportionate self-defense, particularly when the situation encompasses the use of force against non-state actors. Thus, in the words of Tams and Devaney:

[R]ecent practice suggests that geographical factors that may be considered relevant to the proportionality of inter-state self-defence are of limited relevance: hence states hit by terrorist attacks on their home soil have asserted a right to respond against terrorists at their base – and even where their conduct was not generally accepted, the fact that the self-defence operation had carried the fight against terrorism into far-away, remote countries seemed to be a factor of limited relevance (Christian J Tams and James G Devaney, ‘Applying Necessity and Proportionality to Anti-Terrorist Self Defence’ (2012) Israel Law Review 94, 104).

Guest Post: Do All Roads Lead to Rome? Why Ukraine Resorts to Declarations Rather than Ratification of the Rome Statute

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Tom Buitelaar is a Researcher with the Global Governance Program at the Institute. With many thanks to Thomas Koerner, Rod Rastan, Dan Saxon and Eamon Aloyo for their helpful feedback on earlier drafts of this commentary. The views expressed here do not represent the views of the Hague Institute for Global Justice. ] Ukraine is engulfed in a complex and bloody conflict that has cost nearly 8,000 lives and generated over 1.4 million internally displaced persons. The conflict has erupted in different areas of the country and in different forms, from civil unrest and revolution to alleged Russian aggression and illegal annexation of Crimea. The MH17 incident is of particular importance now due to the recent release of the Dutch Safety Board Report on the causes of the crash, which concluded that the plane was hit by a BUK-missile, ruling out other options. Moreover, the UNSC resolution 2166 stipulates that those directly or indirectly responsible for the downing of MH17 must be held accountable and brought to justice. But how can the International Community respond to these challenges and bring those responsible of international crimes and serious human rights violations to justice? In this regard, on September 8, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration (.pdf) under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory since 20 February 2014. This provision can be used by non-state parties to the Rome Statute – Ukraine signed the Statute, but has not ratified it. This declaration was preceded by the declaration lodged (.pdf) on 17 April 2014, which triggered the Court’s jurisdiction over crimes committed during the events on Maidan square between November 2013 and February 2014, and prompted Prosecutor Ms. Fatou Bensouda to open a preliminary investigation. With the second declaration, the Ukrainian government postpones the ratification of the Rome Statute, choosing to involve the ICC in a more ad-hoc manner. This approach can be explained by looking both at the legal and political obstacles to ratification. The main legal obstacle for ratification arises from certain incompatibilities (.pdf) between the Rome Statute and the Ukrainian Constitution. In July 2001, the Ukrainian Constitutional Court (Case N.1-35/2001 [.pdf]) ruled that “some of the Rome Statute provisions were in conflict with the Constitution of Ukraine”. Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the national courts and that judicial functions cannot be delegated to other bodies or officials. Therefore, Ukraine would have to amend its constitution in order to ratify the Rome Statute – as required by Article 9 of the Ukrainian Constitution (.pdf). While for example some countries like Brazil ratified the Rome Statute first on 2002 and amended their constitution later in 2004 – as provided by Article 5(3) of the Brazilian Constitution (.pdf) – this option is not viable for Ukraine. An interesting question is whether the declarations would also be incompatible with the Ukrainian Constitution. On the one hand, this issue would not affect the legal obligation of a state to a Treaty, pursuant to article 27 of the Vienna Convention on the Law of Treaties (.pdf) (which states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”), or the ICC’s competence per se. On the other hand, this might have legal or practical unintended consequences in the domestic legal order if the Court’s potential decisions, warrants of arrest or requests for judicial cooperation cannot be given effect, or if their lawfulness is challenged at the domestic level. Besides the legal obstacles there are also several political challenges to ratification. First of all, rule of law reforms—such as those required by ratification of the Statute and the implementation of its cooperation requirements—have shown to be a serious challenge in post-Soviet states. Because of these difficulties, ratification of the Rome Statute was not necessarily seen as a political priority. Secondly, until 2014, there had been no imminent threat of serious civil or international military conflict. Most importantly, armed conflict with potential Russian 'involvement' was unthinkable due to the historical, cultural and economic ties between the two countries. Moreover, Ukraine’s government is being increasingly overwhelmed with numerous urgent challenges, particularly since the conflict erupted. These include securing financial resources to avoid economic collapse and fighting corruption as a prerequisite for obtaining international financial aid. Currently, the main reform priorities have been tax reform, anti-corruption, and decentralization (the latter as part of the Minsk Agreements package). Therefore, amendments to Article 124 of the Constitution are only foreseen for the second phase of reforms planned for next year. In addition to these legal and political challenges