Aggression and the use of force in international law.

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This panel was convened at 2:30 pm, Friday, April 11, by its moderator, Noam Lubell of the University of Essex, who introduced the panelists: Christine Chinkin of the London School of Economics; Harold Hongju Koh of Yale Law School; Claus Kress of the University of Cologne; and Sean Murphy of George Washington University.

INTRODUCTORY REMARKS BY NOAM LUBELL

The room is overflowing with people, but we are going to make do with the room that we have, and I want to thank you all, particularly those of you who are standing, for being here.

The backdrop to this particular panel is the work of the International Law Association's Committee on the Use of Force. This is a report that we have been working on since 2010, and the mandate for the report was the notion of aggression in international law, which is a fairly wide mandate if you actually try and deal with it properly. We have ended up needing to look at everything from the UN Charter Prohibition on the Use of Force, how that compares to the Kampala definition of the crime of aggression, topics of self-defense, self-defense against nonstate actors, cyber operations, humanitarian intervention, and on and on. The report is still in draft form and is available on the website of the International Law Association. While we were writing it, there was no shortage of events occurring in the real world that were particularly relevant to the issues we were writing about.

Two of those events were in Libya and in Syria, and in both these instances, questions were raised about the legality of arming rebel movements. Questions were raised and often not answered, certain practices were undertaken, different policies were adopted by different governments, and the question, to some extent, at least in the minds of many, remained open. And that's pretty much what happened in our report. In our report, when we get to this particular topic, what we actually say is there may be some ambiguity about providing support to groups fighting to achieve an internationally recognized right to external self-determination, or in cases of popular mass uprisings against abusive regimes.

That's pretty much all we said in the report about it, and again, remember, this is a report which is limited to around 30 pages and covered all those many topics I mentioned earlier. So we couldn't really get into any more detail on the topic of today's panel. It's a topic that raises a host of fairly complex and controversial areas, from the straightforward question of what is a use of force, principles of non-intervention, the question of a human right to self-determination, recognition and more. All of this comes up when you're trying to deal with the question of arming rebels, and we're very much hoping that this panel will provide some clarity to the ambiguity that we mentioned in the report.

Indeed, I'm expecting some clarity, because we've assembled a panel of such absolutely fantastic speakers, all well-known to the point that, really, when you say they don't need an introduction, this is one of those cases in which they pretty much don't. We have Professor Claus Kress of the University of Cologne, Professor Harold Koh of Yale University, Professor Sean Murphy of George Washington University, and Professor Christine Chinkin from the London School of Economics. These truly are some of the greatest experts today in the field of international law, and all with a wealth of experience, not just on the academic side but also in understanding how governments and international institutions go about applying this law and the links between law and policy. I'm sure everyone here is excited--well, clearly they are, looking at the numbers in the room--to hear what our speakers have to say.

The format that we've chosen is the format of a debate, and we did that in the hopes that we might help sharpen the issues, get some clearer thoughts on this, and, perhaps, engage both the speakers and the audience in a lively manner. With these experts and this format, I think it's probably correct to say that we have a real clash of the titans here.

The procedure that we're going to adopt is debating a motion, and the motion that we're debating is "International law permits the provision of arms and other assistance to a rebel movement fighting against an abusive regime."

For that, we're going to have two arguments for the motion, on my left, with Harold Koh going first, followed by Claus Kress. They will each have 10 minutes to present their case. I'm going to try and be fairly strict with the time, as the speakers know, and then we will have two arguments against, by Sean Murphy and Christine Chinkin. When the arguments for and against have been presented, each side will then have a five-minute rebuttal to the other team.

Following the rebuttals, hopefully we will have some time for questions and answers, and, at the end, we'll try and take a vote--it's a bit more complicated with the overcrowded room. I won't actually be counting every single hand, but at least, hopefully we can get a sense of where the room stands. And, indeed, before we start, let's perhaps try and do that, just to get a sense of where everyone is before the debate, and see if that changes, and then we'll know the measure of success of the arguments.

So, again, the motion is "International law permits the provision of arms and other assistance to a rebel movement fighting against an abusive regime." So, all those who would vote for, can you please raise your hands? And, please, don't abstain. This isn't the UN.

[Laughter]

It won't count for anything. So even if you're just 70 percent leaning one way, put your hand up so we can get a feeling. All right, and against?

Okay. I'd say that's roughly 2 to 1, was my feeling there, but there seemed to be a fairly strong majority against. Let's see if that changes, and the task of changing that falls first to Professor Harold Koh.

REMARKS BY HAROLD HONGJU KOH

Let's start by asking the legal question, exactly, that's at stake before us. It's not what's good policy in Libya, Syria, Ukraine, or anything else. It's not what international law approves. It's what international law permits or, oppositely put, what international law absolutely forbids, in all circumstances. Let me just point out this. We are sitting four blocks away from Lafayette Square. My colleagues on the other side of the motion must argue that international law absolutely forbade the French, acting through Marquis de Lafayette, to train and equip American revolutionaries during the Revolutionary War; it absolutely forbade the U.S. to assist the free French Resistance before joining World War II; and it absolutely forbade NATO to aid the Kosovar rebels from securing Kosovo's independence. With respect, that position cannot be sustained as a matter of history or international law, and, thus, I submit, the pros have it.

[Laughter]

Let me first clarify our assumptions, and, second, enumerate why, under narrow circumstances, provision of arms and other assistance to vetted rebel groups is not illegal. If it's not illegal, yes, international law permits it.

First, the three assumptions. The resolution asks, what does international law ever permit, under any circumstance? So we are entitled to assume the strongest possible facts regarding the who, why, and how of this resolution.

Who is being armed? We may assume, as, say, in Libya or Syria, the rebels being armed have some form of imprimatur from the international community, that even under restrictive theories of intervention, they have been recognized, as the Libyan opposition was, by the U.S., the U.K., France, or elements of the Syrian opposition. That legitimate consent addresses some of the traditional international bars of sovereignty and non-intervention.

Second, how are they being armed? We assume that there is vetting to make sure they don't commit human rights abuses, and that the U.S. and the U.K. are not seeking to exercise effective control, say, over how the equipment is being used. It's simply giving turnkey equipment training to improve the rebels' chances of holding their own against an oppressive regime that's undeniably using gross abuses to maintain power.

Third, why are they being armed? Here we may assume that these outside powers have no territorial aspirations. They have only a humanitarian motive to help legitimate rebels, who are seeking self-determination, resist an abusive regime that's committing war crimes and crimes against humanity against its own civilian population: like the regime of Assad, Milosevic. We may assume that the arming is not done so much so that the rebels win the fight outright, but to let them hold their own against extinction to create space for diplomacy to end the conflict by peaceful means. This, I understand, is the objective of Secretary Kerry and UN Ambassador Samantha Power in urging this policy option with respect to the Syrian rebels. The question is, does international law, as it currently stands, unequivocally remove that policy option from the table? I think the answer is no, assuming these three conditions are met.

Now, this is an audience of illustrious international lawyers. Let me give you five reasons why it would not be illegal. First, and most obviously, even if you thought it was aggression, which I do not, it does not meet the standard for the crime of aggression. It doesn't meet the test of manifest violation of a character, gravity, and scale, which sufficient to distinguish criminal aggression from other unlawful actions.

Second, let's assume that arming rebels, standing alone, is called indirect aggression under the terms of Article 7 of the 1974 General Assembly Resolution 3314. But that resolution says that nothing in the definition shall prejudice the right of self-determination, freedom, and independence of peoples responding to human rights abuses, to seek and receive support in accordance with the principles of the Charter.

Third, arming...

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