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U.S. Military’s “Collective Self-Defense” of Non-State Partner Forces: What Does International Law Say?

Earlier this month, Senator Tim Kaine made public a letter he wrote to Secretary of Defense Jim Mattis asking for clarification on the meaning of “collective self-defense of partner forces” as a legal basis for U.S. military action. In the letter, Kaine expresses concern that the executive branch is using this justification to use force against adversaries that are not covered by existing congressional authorizations for use of the military, de facto bypassing Congress. While Kaine appears to be mainly concerned with the authority to act under domestic law, he also specifically asks the Department of Defense for its “international legal rationale for use of U.S. military force for collective self-defense against combatants who pose no direct threat to the U.S., its […] Armed Forces or persons […].”For international lawyers the phrase “collective self-defense” refers primarily to the well-established UN Charter right of States to defend other States. This right pertains to the jus ad bellum, that is, the law that governs when a State may use force against or in the territory of another State. In the U.S., however, the terminology of collective self-defense appears in the Standing Rules of Engagement (SROE) applied by U.S. forces and is defined as “[t]he act of defending designated non-U.S. citizens, forces, property, and interests from a hostile act or demonstrated hostile intent.” It may be thought of as an extension, not of self-defense of nation states, but self-defense of military units (a form of self-defense specific to military forces) and is sometimes characterized as “tactical self-defense.” In 2016 for instance, the Obama administration invoked the collective self-defense of African Union Mission in Somalia (AMISOM) to justify a strike against an Al-Shabaab camp in Somalia. A statement by U.S. Africa Command released last week invokes the same legal basis in relation to the latest U.S. strike against the group. The DoD statement quoted in Kaine’s letter, however, reflects an extended interpretation of this notion, covering not only the defense of state forces (like AMISOM or Somalian forces) but also non-state forces (“irregular partner forces or persons”). The Trump administration has indeed invoked the collective self-defense of Syrian Democratic Forces (SDF) in June 2017 to justify the downing of a Syrian regime jet, and again in February 2018 to justify strikes against Syrian pro-regime forces.Is the collective self-defense of non-state partners a valid legal basis for the use of force under international law? The source for unit self-defense and its “collective” extension, as well as how the different versions of self-defense – national, collective, unit, individual – relate to each other is a matter of controversy. It is impossible to address here all aspects of this controversy. Recent scholarly works have contributed to this discussion and in fact reflect a wide array of approaches, for instance on the need to harmonize or not different types of self-defense (see for instance here, here, here, and here).The main point in my analysis is that a State using force abroad must comply with two distinct legal regimes: first, the jus ad bellum and second, rules governing how much force may be used against specific persons or objects (more below). Invoking collective self-defense alone is not sufficient to establish legality under international law. Hence, the DoD must clarify whether its claims pertain to the first or second part of the legal test. If the first, claims of collective self-defense of non-state partners are problematic because they have no basis under jus ad bellum. If the second, it is unclear whether the U.S. interpretation of collective self-defense conforms to the body of legal rules applicable to that part of the test. In order to make this determination, it is urgent that other States share their practice and legal views in this respect.The international law governing the use of force: a two-layered frameworkWhen a State uses force beyond its borders the lawfulness of its activities is a function of two cumulative conditions: first, compliance with the jus ad bellum and second, compliance with the jus in bello, otherwise called the law of armed conflict (LOAC), or other rules regulating the type and degree of force states may use against specific individuals or objects.Under the jus ad bellum enshrined in the UN Charter a State may use force in the territory of another State only in three circumstances: with the territorial state’s consent, with UN Security Council authorization or in the exercise of its right to individual or collective self-defense in conformity with Art. 51 of the Charter. Thus, as pointed out above, the phrase “collective self-defense” does appear in the UN Charter. There, it refers to States’ right to use force in the defense of other States.As far as the second part of the legal test is concerned, the applicable law is less straightforward. For many international lawyers, there are only two such applicable laws: LOAC or human rights law (HRL). But the practice of States complicates this dichotomy as they rely extensively on their soldiers’ right to self-defense – even, to the surprise of LOAC lawyers, when LOAC is applicable and would provide a more natural legal basis for action.In classical scenarios where a State uses force against another State, the second part of the legal test would imply considerations of LOAC since any use of force against a State would immediately trigger an international armed conflict (IAC). As a result, the intervening State would have to comply with the jus ad bellum and the LOAC. When a State carries out strikes against a non-state actor as is most often the case nowadays, the applicability of LOAC is less obvious and immediate – confrontations against a non-state actor reach the level of a non-international armed conflict (NIAC) triggering LOAC applicability only when a certain threshold of intensity is crossed. When it is not the case – for instance, if U.S. forces engage an armed group for the first time or target viaa drone an individual who does not belong to a party to conflict – LOAC does not apply (yet) and therefore, the second legality condition must be evaluated under other international rules.What these other international rules are is controversial. At least when ground forces are involved, it is uncontroversial (except for the United States!) that HRL applies. For instance, when U.S. or French forces in the Sahel use force for a reason unrelated to an armed conflict – such as to defend themselves from civilian looters – they are bound by HRL. HRL prohibits the arbitrary deprivation of life; and self-defense is obviously admitted as a valid, non-arbitrary justification for the taking of human life. From this perspective, the right to self-defense of State agents is a subset of, and constrained by, HRL. By contrast, the U.S. seems to consider that there exists a separate “law of self-defense” (proper to military forces?) with its own legal authority to use force, unconstrained by HRL. The burden of proof that such law exists at the international plane lies with the United States or any State making such claim. Indeed, as there is clearly no treaty on individual/unit self-defense, the source for such law can only be customary international law. This requires evidence of state practice and opinio juris. Therefore, it would be very important for other States to share their position in this respect.In sum, irrespective of whether it forms part of HRL or is a distinct legal regime, self-defense at the individual level – and perhaps unit level – pertains to the second part of the legal test (and is distinct from State/national self-defense, a jus ad bellum notion). However, there are many uncertainties as to the contours of this right to self-defense. According to State practice and soft law instruments designed to guide the application of HRL, lethal force may be used in self-defense against an imminent threat to life. But there remain points of controversy. One of them is whether this right extends to the defense not only of one’s unit but also of others such as military partners (what the U.S. SROEs identify as “collective self-defense”). As pointed out in the San Remo ROE Manual not all States recognize such a right. In other words, States have not yet agreed on whether, under international law, their forces can defend their military partners when they are not themselves (or their unit) threatened and the adversary is not a legitimate target in an armed conflict (again, irrespective of jus ad bellum considerations). Other controversial aspects include whether individual and unit self-defense are available only against unlawful violence (as is the case of the criminal law defense of self-defense in many domestic systems) and whether they extend to the defense of property.To conclude, under the general international law framework governing the use of force, a State using force must comply first, with the jus ad bellum – which includes an authority to use force in the collective self-defense of other states – and second, with other rules governing how much force may be used against which individuals and objects, the source and nature of which depend on the circumstances (LOAC or HRL). This second set of rules also provides for a right to self-defense (under HRL or separately) though not at State level but individual (and arguably unit) level; however it is controversial whether this right extends to the collective self-defense of military partners.Applying this framework to U.S. claims of collective self-defenseIn relation to this well-established two-part test, the United States adopts a controversial position: successive administrations seem to consider that self-defense alone is sufficient to comply with international law. This idea appears in the Obama administration’s “civilian casualties report” when it considered that an individual may be lawfully targeted by a drone because he is targetable under the LOAC “or” in the exercise of “U.S. national self-defense” (footnote a). U.S. national self-defense refers to the jus ad bellum right to self-defense. The document therefore suggests that a jus ad bellum authority would be sufficient for these strikes to comply with international law, without the need to consider the additional application of LOAC, HRL, or (if distinct from HRL) the law of individual/unit self-defense. Or, at a minimum, the report is silent on which law would apply in addition to the jus ad bellum, if LOAC does not apply.Now, recent official statements indicate that the U.S. government also considers collective self-defense as another “umbrella justification.” When the DoD invokes collective self-defense in relation to the 2016 al-Shabaab camp attack, or the 2017and 2018 attacks on Syrian regime and pro-regime forces, it seems to suggest that this is enough to justify those actions at the international level. However, it is unclear whether it views this collective self-defense as originating from the jus ad bellum or not.It is suggested that this position – considering national or collective self-defense, however they are defined, as a sufficient international legal basis for the use of force – would contradict the position of U.S. allies, including NATO ones. The United States must critically question its position and actively engage with them in this respect.SyriaThe use of force against Syrian regime and pro-regime forces must comply with this two-layered framework. Let us examine first whether the DoD claim of collective self-defense of the SDF could provide a valid legal basis under the jus ad bellum – the first part of the test.It is well known that in 2014, at the start of the counter-ISIL campaign in Syria, the Obama Administration invoked both individual self-defense and the collective self-defense of Iraq in an Art. 51 letter to the UN Secretary General. This was the “classical” version of collective self-defense – in the defense of another State. However, this initial self-defense claim cannot cover the use of force against regime and pro-regime forces: the 2014 letter mentions only military actions against ISIL. Thus, when the U.S. targeted these new adversaries in June 2017 and in February 2018, it had to make a distinct self-defense claim. As pointed out above, the Art. 51 right to collective self-defense is only a right to defend other States, not non-State entities. This flows from the nature of the UN Charter which is a treaty amongst States. This reading of Art. 51 is uncontroversial in academic commentary. There is no prior instance where a State has openly invoked Art. 51 in defense of a non-state entity.Another possibility would be to frame the defense of the SDF not as collective self-defense but, in fact, as individual (national) self-defense under Art. 51: the U.S. would argue that by targeting the SDF, Syrian regime and pro-regime forces are in fact targeting the U.S, thus triggering the U.S.’ individual right to self-defense. After all, States (in fact, the U.S.) have invoked their right to self-defense in response to attacks which occurred outside their territory and did not target their military personnel or assets. Think of the Oil Platforms case – which involved attacks on U.S. merchant vessels – and the 1998 bombings of the U.S. embassies in Kenya and Tanzania: in both cases the U.S. claimed to have been victim of an armed attack triggering its right to self-defense. However, in the Oil Platform case the U.S. claim was unsuccessful (the Court specifically found that an attack on a ship not flying the U.S. flag, even if owned by the U.S., could “not in itself […] be equated with an attack on that State” – p. 192). Needless to say, claiming that an attack on the SDF – whose personnel are not U.S. nationals (with exceptions) and assets are not currently owned by the U.S. nor identified as such – is an attack on the U.S. itself has little chance of success (space does not allow for a full treatment of this question, for instance whether the notion of control over the group would be relevant). In sum, these U.S. attacks against pro-Syrian forces lack a legal basis under jus ad bellum, and the DoD claim of collective self-defense fails to provide such a basis.As to the second part of the legal test, the DoD claim of collective self-defense of the SDF would also be controversial and, in fact, unnecessary. As pointed out above, States have not yet agreed on whether their soldiers’ (individual and arguably unit) right to self-defense extends to the defense of others (either subject to HRL or originating from a distinct “law of self-defense”), providing a legal basis for the use of force under that second part of the legal test (note that if the U.S. claims that such right exists and derives from the jus ad bellum right to collective self-defense, it can be invoked only in the defense of State armed forces – see above). It is also possible that this right to individual, unit and collective (?) self-defense is available only against unlawful violence. If unlawfulness is to be assessed under the law of the territorial state, the U.S. cannot invoke self-defense to defend the SDF because under Syrian law it is perfectly lawful for the Syrian regime to use force against the SDF. If unlawfulness turns on an international law test, the result is the same: the use of force by Syria against the SDF is neither unlawful under the jus ad bellum nor unlawful under the jus in bello and the US cannot rightfully invoke the right to defend the SDF. In any case, it is submitted that this controversial claim of collective self-defense is unnecessary in this scenario: to the extent that the targets are Syrian State assets, an IAC with Syria was immediately triggered (or even existed prior to those incidents), together with the applicability of the LOAC. Under the LOAC, a military jet is a military objective by nature in the IAC opposing the United States and Syria, and hence a legitimate target. Therefore, the second part of the legal test is fulfilled without the need to invoke collective self-defense.However, because of the lack of a jus ad bellum justification, the 2017 and 2018 attacks against regime and pro-regime forces remain unlawful under international law.As is clear from this essay, the DoD claims of collective self-defense raise a number of international law questions, which must urgently be settled. First and foremost, the U.S must clarify what is the source of this right of collective self-defense — jus ad bellum or another international law regime and if so which one? [As an aside, if SROE collective self-defense refers to a different concept than jus ad bellum self-defense, a change of term should seriously be considered as this clearly contributes to the conceptual confusion.] Clearly, this is not a discussion the U.S. can have alone. U.S. allies operating alongside U.S. forces, States hosting U.S. forces, and other States must share their legal views on this crucial topic. Last April, at the Annual ASIL conference, Brazil expressed its opposition to the “unwilling or unable” test for the use of force against non-state actors. Other states must take advantage of the participatory nature of the international legislative system and share their interpretation of treaty provisions as well as their opinio juris concerning possible customary rules in this important area of state practice. Failing to do so, states that are militarily active continue to take life-and-death decisions on the basis of unchallenged legal views.Source: Just SecurityLeague of Justice 

October 28, 2018, 10:01 pm

Nigerian lawyer, Adeola Oyinlade, wins International Bar Association’s Human Rights Award 2018

          Charges  lawyers to use law as “a glue that holds the society together”ROME- A Nigerian human rights lawyer, Mr. Adeola Austin Oyinlade, has been declared winner of the International Bar Association’s Award for Outstanding Contribution by a Legal Practitioner to Human Rights for 2018. The prestigious award was presented to him at this year’s IBA Conference in Rome, Italy. Mr. Oyinlade emerged winner ahead of other finalists from many countries across the world.Each year, the International Bar Association (IBA) presents the award to an outstanding lawyer in the world of human rights law. The IBA has a membership of over more than 80,000 individual lawyers and 195 bar associations and law societies spanning all continents across the world.Mr. Oyinlade has distinguished himself through his courageous stand for human rights and his pro-bono legal services to the poor in Nigeria. As a lawyer advocating equitable, just and fair society over the years, he has taken his human rights empowerment further by simplifying human rights laws and safeguards to the understanding of ordinary people on the street in English and major local languages including Pidgin, Hausa, Igbo and Yoruba spoken by over 100 million people in Nigeria.The IBA award winner pioneered human rights empowerment via mobile technology when he created ‘Know Your Rights Nigeria’ app for millions of android, iPhone and web users in Nigeria. The app and the web version of his work simplify all human rights laws in force with safeguards in English, Pidgin, Hausa, Igbo and Yoruba languages alongside platforms where users engage him and his team of over 50 lawyers daily for free legal support on human rights issues.The lawyer and UN Peace Ambassador also created platforms on the app where users report abuse anonymously, get safeguards on what steps to take in the face of assaults, and get connected to security forces for help, thereby pioneering the first ever human rights empowerment innovation with mere push of buttons in the palms in English and major local languages in the era of mobile technological advancement. Since the human right lawyer unveiled the app and web version for human rights empowerment, it has proved very effective for its free access, speedy dissemination of human rights information and free legal advisory with over 200 thousand people as beneficiaries. The rights empowerment app in major local languages has made a real difference for the situation of the defenseless and ordinary people on the street in Nigeria.Earlier this year at the U.S Consulate in Lagos, the U.S Consul General John Bray has commended and “acknowledge Mr. Adeola Oyinlade and the work he has done to strengthen respect and support for the protection of human rights in Nigeria’.While asserting that the US Government have turned to Mr. Oyinlade for his insights on the status of human rights in Nigeria, the Consul-General sees his work in Nigeria very key as according to him, Nigeria is ‘one of the most important countries on the continent, given its large population, thriving commercial enterprises, and strategic geopolitical location Nigeria is critical to Africa’s prosperity and stability".At the continental level, through advocacy, the Nigerian human rights and international law expert has also proffered solutions to human rights issues in Africa including the South Sudan Political Crisis, the Central African Republic Crisis, the Congo Democratic Republic Armed conflict, and the Libyan peace talks among others with relative impact.He worked as a resource person to the African Union Commission on the implementation of African Youth Charters and delivered papers on how AU member states can reform local laws for the implementation of the charter.At the presentation of the award at Roma Convention Center La Nuvola, the conference venue on Friday 12 October, 2018, the IBA stated the prestigious Award is for outstanding contribution by a Legal Practitioner to Human Rights in which Mr. Oyinlade came top among lawyers across the world.The IBA Human Rights Award honoree, while giving his remark, thanked the Global lawyers’ body for the award and said such recognition is a charge to do more. “Recognition of this magnitude brings more responsibilities. Since the task that follows such responsibilities will give birth to deliverables and outcomes that will shape the world for better, I am happier and fully ready to carry on”, Oyinlade said.According to the IBA Human Rights honouree, “As it appears to me, we are not short of preachers against human rights abuse or short of preaching against serial violations of human rights. We are only short of compliance with the rule of law. As the world is commemorating the 70th anniversary of the Universal Declaration of Human Rights this year, we all have more work to do to make the world fair and just.“The world is looking up to us (lawyers) to consistently use our legal expertise as a tool of social engineering and problem-solving. I believe and hope that we shall continue to apply our knowledge of law as a glue that holds the society together”, he said, while calling on lawyers to take the leading role in expanding the frontiers of human rights.Mr. Oyinlade is the first Nigerian lawyer to have won the IBA award for outstanding contribution by a legal practitioner to human rights and the second from the continent of Africa after George Bizos from South Africa who was recommended by many personalities including Nelson Mandela.LEAGUE OF JUSTICE ONLINE

October 13, 2018, 5:02 am

african news


Amisom ready to withdraw

The African Union Mission in Somalia is going ahead with plans to withdraw its troops in February next year even though some troops-contributing countries are not keen on leaving.In a recent workshop in Nairobi, Amisom top brass, representative of Somalia government and African Union developed a document that will provide an effective framework for the gradual transition of security responsibilities to Somali institutions.Known as the Concept of Operations (CONOPs), the document will guide Amisom’s activities and operations for the 2018-2021 period, marking the final phase of the transition and eventual exit from Somalia.Crucial stepFrancisco Madeira, special representative of the AU and civilian head of Amisom, said that CONOPs is an important undertaking because it marks a crucial step in the efforts to stabilise Somalia.“We have made progress despite challenges and we are proud of that progress, “said Mr Madeira.But Gen Adan Mulata, Kenya’s Assistant Chief of Defence Forces in charge of Operations, Doctrine and Training, said that while the document is intended to place Somalia on the path to recovery and an Amisom exit is inevitable, stakeholders should consider the conditions on the ground.“The country has to be left in the hands of people capable of pursuing peace and recovery,” he noted.“Let us talk about meaningful change in Somalia, not blame-games and fault-finding,” added Gen Mulata.The document, which will have to be approved by AU and senior defence officials of troops-contributing countries, looks at Amisom’s transition plan vis-à-vis the political and security situation in the country.Transition PlanAccording to Amisom spokesperson, Col Richard Omwega, the CONOPS focuses on the implementation of Somalia Transition Plan and reconfiguration of the military in preparation for conditional handover of security responsibility to Somalia security forces, and opening and securing of main supply routes in the country in a prioritized order.“Other key issues it addresses includes capacity building of Somali citizens and stabilization programmes to enhance and sustain peace and security as the country gets ready for 2020 general elections based on the principle of one person one vote,” he said.Col Omwega, however added that condition based draw-down of military forces by end of February 2019 will still take as stipulated in UN Resolution 2431.There were previously 22,126 troops from the five TCCs; Kenya, Uganda, Ethiopia, Burundi and Djibouti. Kenya, Uganda, Ghana, Sierra Leone, Nigeria and Zambia have also contributed police contingents to Amisom.Uniformed personnelHowever due to reduced and irregular funding, the UN Security Council Resolution 2372 issued in 2017 had instructed Amisom to reduce its uniformed personnel to a maximum 21,626 in readiness for a full pull-out in 2020.The first withdrawal; of 1,040 started in December 2017 and a further reduction of similar number was set for October this year.However, this has not been pushed to next year could be adjusted again if the TCCs managed to convince the UN Security Council. The second phase of withdrawal was set for December but has since been pushed to February next year.In July, the UN Secretary-General Antonio Guterres , wrote to the Security Council advising that said plans to cut Amisom troops were not realistic, especially after the biggest terror attack in Mogadishu in October last year in more than 500 people died.Kenya and Uganda has not been keen on leaving Somalia before the country is stabilized. Kenya, for instance, is concerned that a premature withdrawal could reenergize Al Shabaab to start attacking the country after almost two years without major attack.Kenya’s President Uhuru Kenyatta for most of this year has been critical of the withdrawal as “unfortunate timing” and that the UN and AU should be practical because the Somalia National Army and other security agencies are not yet ready to take on full responsibility for security.Uganda on the other hand has issued a proposal to donors that would enable its troops to remain in Somalia under a new arrangement provided there are funded.Amisom, that entered Somalia in 2007, has been struggling due to reduced and irregular funding.While Amisom continues to receive financial, logistic and equipment support from multilateral donors, the reduction of the European Union $200 million annual stipend to Amisom troops by 20 percent has affected some of the Amisom operations.Source: The East AfricanLEAGUE OF JUSTICE ONLINE

November 14, 2018, 5:48 am

Cameroon begins in-camera trial for secessionist leaders over Anglophone crisis

Trial for leaders of the self-proclaimed Republic of Ambazonia in the English-speaking region of Cameroon has begun in Yaoundé.Julius Ayuk Tabe, leader of this supposed state including his nine co-accused were brought before judges under strong military escort for this closed-door hearing.John Fru Nsoh is leader for the separatist leaders.“Since their arrest on January 5 in Nigeria, for the past 10 months, this is the only time they have had the opportunity to tell their side of the story before this court. This is the happiest day of my life as a lawyer and the happiest day of their lives as persons accused of being heard in this court’‘, Nsoh told Africanews.The 10 accused applied for parole so they can better prepare their defense. For family members who were also excluded from the hearing, anything can happen.“I am very moved after seeing my brother go out today for the first time in court. I think something will happen, because they are not thieves. They are fighting for a just cause, and they must be listened to and not locked up for 10 months’‘, said Florence Kwanga, a sister of one of the accused.The 10 co-accused are being prosecuted for their alleged role in organizing a secessionist movement that is shaking the English-speaking regions of Cameroon.The court adjourned hearing to Thursday, November 15 to determine a request for their interim releaseSource: AfricanewsLEAGUE OF JUSTICE

November 3, 2018, 1:40 am