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1. Saudi Coalition “Admission” of Error in Bombing Cholera Treatment Center Implicates the United States

Author:
Oona A. Hathaway
Publication Date:
01-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In June 2018, the U.S.-supported Saudi led coalition struck a cholera treatment center run by Médecins Sans Frontières/Doctors Without Borders (MSF) in Yemen. A recent internal investigation released by the coalition tries to lay the blame for the strike on MSF. But tucked into the report is a cryptic admission that the coalition did not “complete the necessary procedures used by the Coalition Forces” before undertaking the strike. This suggests that the coalition has not stuck to a deal it made with the United States to maintain U.S. support by properly vetting strikes, leaving the United States and its personnel legally exposed for continuing to support operations that violate international humanitarian law.
Topic:
International Law, Military Strategy, Humanitarian Crisis, and Air Force
Political Geography:
Middle East, Yemen, Saudi Arabia, North America, and United States of America

2. Bolton’s Stated Predicate for War With Iran Doesn’t Work

Author:
Oona A. Hathaway
Publication Date:
05-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The President’s National Security Advisor John Bolton has long been beating the drums of war with Iran. Those drums are growing louder. In the last month, Bolton has repeatedly threatened that Iran’s support for its “proxies” could bring “a very strong response”—even military force. By threatening military action against Iran in retaliation for the acts of groups it supports, Bolton is trying to frame a war on Iran as a justified—even righteous—act of self-defense even if he cannot prove that Iran itself has participated in any attacks. Such a war would, however, be illegal.
Topic:
Foreign Policy, Diplomacy, Military Strategy, Law, and Conflict
Political Geography:
Iran, Middle East, North America, and United States of America

3. Below the Threshold: The Law Governing the Use of Force Against Non-State Actors in the Absence of a Non-International Armed Conflict

Author:
Daniel Hessel, Julia Shu, and Sarah Weiner
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Boko Haram attacks civilians in Nigeria. The Islamic State launches attacks in Paris. Terrorists take hostages at a hotel in Mali. Mexican drug gangs threaten government officials and civilians. Houthi rebels seek to take control of the government in Yemen—and succeed. States increasingly face security threats from non-state actors, which have led states and observers to ask what states can do in response. What legal framework should apply? What constraints do states face? When can states resort to the use of military force to address threats posed to them by non-state actors, either on their own territory or on the territory of another state? The answer to these questions turns on whether the conflict in question rises to the level of a non-international armed conflict (NIAC). Based on the drafting history of international humanitarian law (IHL) governing NIACs, international jurisprudence, recent state practice, and academic commentary, this paper concludes that a NIAC does not exist unless the conflict passes an intensity threshold. In other words, the intensity of the conflict distinguishes generalized violence involving a non-state actor from a NIAC. Once the existence of a NIAC is established, states participating in it will be governed by relevant IHL. But if states are only governed by the IHL applicable to NIACs once an intensity threshold has been crossed, what law applies below that threshold? The answer varies with the circumstances, depending on whether the state is responding to a threat within its own territory or from outside; and if the threat is from outside the state, whether the host state consents to the use of force against the non-state actor. Thus, to answer the question of what law applies before a NIAC is established, this white paper analyzes three different scenarios in which a state contemplates forceful engagement with a non-state actor. Each scenario presumes that t he non- state actor is organized and has engaged in some violence, but that the intensity of the clash has not crossed the intensity threshold and thus has not risen yet to the level of a NIAC. 1. In Scenario One, a state seeks to engage a non-state actor that operates exclusively within the state’s territorial borders. 2. In Scenario Two, an intervening state seeks to engage a non-state actor located in another state, with the consent of the host state. 3. In Scenario Three, an intervening state seeks to engage a non-state actor located in another state, without the consent of the host state. The analysis of each scenario first identifies the authority that governs whether and when the state may initiate forceful engagement with the non-state actor (the “may the state use force” evaluation), then discusses which legal regime governs the scope and nature of the resulting use of force (the “how may the state use force” evaluation). Different legal regimes govern the acting state’s options in each of the scenarios. Although the authority for action differs, the inquiries for Scenarios One and Two are quite similar. In Scenario One, the acting state may engage the non-state actor with force by virtue of its territorial sovereignty. It must act, however, through a domestic law enforcement framework and in compliance with human rights law. In Scenario Two, the acting state derives the authority to use force against the non-state actor from the host state’s consent. However, it may only rely on that consent insofar as it comports with the host state’s human rights obligations under international law. In raising the possibility of one state violating another state’s territorial integrity, Scenario Three raises a different set of questions. The intervening state’s threat or use of force within another state’s territory is only lawful when authorized by the U.N. Security Council or justified under the Charter’s Article 51 self-defense provision. The intervening state’s use of force is accordingly regulated by the traditional IHL of international armed conflict. Where scenarios overlap (when, for example, the intervening state has both consent and Article 51 authority to act), the acting state may rely on more than one source of authority. It must, however, continue to ensure that it has authority to use force and that its use of force comports with the legal framework appropriate for the nature and intensity of the conflict. It is worth noting at the outset that these scenarios highlight developing areas of international law. Some raise questions that have clear answers in existing legal authority, while others contend with more inchoate legal regimes. Where state practice has not yet solidified into definitive international norms, legal ambiguity remains. In such instances, this white paper notes the existence of ambiguity and examines the history, purposes, and principles of relevant legal regimes to proffer answers.
Topic:
Military Strategy, Non State Actors, Law, and Conflict
Political Geography:
Global Focus

4. Historical Examples of Unauthorized Humanitarian Intervention

Author:
Julia Brower, Ryan Liss, Tina Thomas, and Jacob Victor
Publication Date:
08-2013
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In December 1971, India sent troops into what was at the time known as East Pakistan. For the preceding months, Pakistani forces had been engaged in a violent conflict with a Bangladeshi separatist group.1 The Indo-Pakistani conflict was sparked by the Bangladesh Liberation War, a conflict between the West Pakistanis and the East Pakistanis, who were mainly of Bengali ethnicity.2 In the 1970 Pakistani election, the East Pakistani Awami League secured a simple majority in the Parliament of Pakistan.3 The West Pakistani leadership, however, stalled in relinquishing power.4 The Awami League declared the independence of East Pakistan as Bangla Desh on April 10, 1971.5 West Pakistani forces engaged in violent attempts to end the insurrection, committing widespread atrocities against the Bengali population of East Pakistan.6 Over a million Bengalis were killed.7 And, an estimated 8 million refugees fled to India.8 In December 1971, fighting broke out between India and Pakistan when India sent armed troops into East Pakistan.9 U.N. debates over the conflict took on a distinctly Cold War tone, stalling any action on the part of the United Nations.10 The military conflict between India and Pakistan lasted only thirteen days before Pakistani forces in East Pakistan surrendered.11 By January 4, 1972, the Secretary-General was able to report that the cease-fire between the two states “appeared relatively stable.”12 As a result of India’s intervention, East Pakistan ultimately achieved independence and became modern-day Bangladesh.13 In justifying its unauthorized intervention, India framed the issue as mainly one of self-defense and regional security. Citing the millions of refugees flowing from East Pakistan into India, the Prime Minister of India wrote to the U.N. Secretary General that Pakistan’s actions “pose a serious threat to our security” and that the resulting military action taken against Pakistan was “entirely defensive.”14 The Indian Ambassador to the Security Council argued that Pakistan had committed a crime of “refugee aggression,” that is, its aggression came from the strain its actions placed on India’s social structure and finances.15 India also argued that it had a right to intervene in light of the humanitarian catastrophe engulfing East Pakistan. The Indian Ambassador to the U.N. claimed that India had “absolutely nothing but the purest of . . . intentions: to rescue the people of East Bengal from what they are suffering.”16 India also maintained that its authority to intervene to end the humanitarian catastrophe was based in part on the consent of Bangladeshi people, even though Bangladesh was not yet an independent state.17 In making this argument, India argued that the rule of self-determination might be applied to the Bengali people.18
Topic:
United Nations, Military Strategy, Legal Theory, and Humanitarian Intervention
Political Geography:
Pakistan, India, and Asia

5. Collective Self-Action

Author:
Ananth Padmanabhan and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Collective self-defense is an express exception to the U.N. Charter’s prohibition on the use of force by states. It permits a member state to intervene in the defense of another member state when that state has been subject to an unlawful armed attack. Here we consider (1) the obligations that international law places on an intervening state and (2) the best practices for an intervening state that may be derived from past state practice.
Topic:
United Nations, Military Strategy, Legal Theory, Military Intervention, and Collective Defense
Political Geography:
Global Focus

6. The Meaning of "Assist, Encourage, or Induce" in the Weapons Ban Context

Author:
Christina Koningisor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
More than half of all multilateral disarmament treaties currently in force prohibit member states from “assist[ing], encourag[ing], or induc[ing]” another party in its pursuit or use of the prohibited weapon. This report examines this provision across five major disarmament treaties and arrives at three key findings
Topic:
Arms Control and Proliferation, Treaties and Agreements, Military Strategy, and Multilateralism
Political Geography:
Global Focus