#11459 - Case List - International Humanitarian Law

Nicaragua v. US (ICJ 1986):

• US Actions: refused to participate in ICJ case after ICJ rejected argument that ICJ lacked jurisdiction (dismissing the Court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and seomtiems don’t”; then blocked enforcement by Security Council.

• HELD: US in breach of its obligations under CIL not to use force against another state.

• US argued that its actions were for the benefit of El Salvador, acting in response to an armed attack by Nicaragua (claiming to exercise a right of collective self defense).

• HELD: the provision of arms to the opposition does not constitute an armed attack (CIL) (at max: a breach with the principle of non-intervnetion)

• It is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.” (also used in Oil Platforms)

• “Widespread reports of a fact may prove on closer examination to derive from a single soruce, and such reports, however numerous, will in such case have no greater value as evidence than the original source.” (also used in Oil Platforms)

Prosecutor v. Tadic (ICTY 1995). Tadic argued: 1) court was illegitimately created through the UN Security Council, which created the ICTY without participation or consent of any of the states comprising the former Yugoslovia

• HELD: yes, the ICTY has jurisdiction. In order for an international tribunal to be established according to rule of law, it must be established in accordance with the proper international standards, provide all guarntees of fairness, justice, and evenhandedness, in full conformity with internationally recognized human rights instruments.

• Tadic argued: none of the alleged crimes occurred in the course of an international armed conflict.

• HELD: the laws and customs war referred to in CA3 includes all CIL of armed conflict, including that part which was applicable in NIAC. Grave breaches apply in NIAC. Did not determine the character of the AC in Bosnia-Herzegovina.

“The Caroline” – 1837 settlers in Canada rebelled against the British colonial government. US remained officially neutral, but American sympathizers assited rebels with supplies transported by steamboat called The Caroline. In response, a British force from Canada entered US territory at night, seized the Caroline and set it on fire. Killed 1 American. British claimed the attack was an act of self-defense.

• Incident has been used to establish principle of “anticipatory self-defense”, which holdes that it may be justified only in cases in which the necessity of that self defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation. (Webster letter) This is called the Caroline test.

• Invoked frequently in the course of the dispute around preemptive strike/preemption doctrine. Now accepted as CIL. Used in Nuremberg Trials.

• Caroline test has 2 distinct requirement

  • Use of force must be necessary because the threat is imminent and thus pursuig peaceful alternatives is not an option

  • Response must be proportionate

Security Resolution 487 (Iraq-Israel, Osirak case): condemned an attack by Israel on a nuclear site in Iraq. In late 1970s, Iraq purchased nuclear reactor from France and Israeli military intelligence assumed it was for the purpose of plutonium production to further an Iraqi nuclear weapons program. Israeli intelligence believed summer of 1981 would be the last chance to destroy the reactor without exposing the Iraqi civilian population to nuclear fallout. June 7, 1981: Israel bombed and damaged Osirak reactor as part of Operation Opera.

• Israel claimed: once the Iraqis actually had nuclear weapons, it would have been too late to do anything about it. Failure to step in, would endanger the survival of Israel and the peace and stability of the entire world.

• Resolution: forced Israel to pay reparation for the damage caused by the ’81 attack

• Self-defense (preemptive force) was not a justification for Israel’s actions. Article 51 comes into effect only if an armed attack occurs, and there was no armed attack on Israel in 1981.

• Pre-emptive/anticipator self-defense only justifies first-strike when the danger posed is “instant, overwhelming, leaving no choice of means and no moment for deliberation”

Oil Platforms Case (ICJ, Iran vs. US 2003): conflict between Iran and Iraq affected shipping routes through Persian Gulf. Tanker War. Many commercial vessels and warships of various nationalities attacked, lots of ships carrying Iranian oil. Iran denied any responsibility, attributes to Iraq. Escort missions initiated, ships reflagged. Kuwaiti ship, US flagged, attacked (Sea City Isle). US blamed Iran and retaliated by hitting an offshore Iranian oil production installation 3 days later, claiming to be acting in self-defense.

• Reshadat/Resalat platform. Not producing oil at the time of the attack. According to Iran though, the platforms’ repair was close to finished. Attack only made on Reshadat, but affected operation of Resalat. Iran says oil production was interrupted for several years.

• Navy approached, warned Iranian personnel of imminent attack, allowed for evacuation before attack.

• US says that the missile that hit the Sea Isle City was fired by Iranian forces from Iranianoccupied Iraqi territory, and that the oil platforms had been used to monitor the movements of US convoys, coordinate minelaing, and assist small boat attacks against shipping. (they said this to justify their attack against the platforms specifically). Claimed “diplomatic measures were not a viable means of deterring Iran from its attacks.” Iran claims it was not responsible for the SIC attacks and that the platforms had no military purpose and were not engaged in military activity. Says previous attacks on US ships added to the ravity of the specific SIC attack and reinforced the necessity of action in self-defense.

• Note: US not claiming collective self defense, so US has to show that Iran made an armed attack (as defined in Art. 51 of Charter) against US.

• Iran claims US evidence is weak, and that the missile might have come from Iraq

• Burden of proof of the existence of armed attack falls on the party claiming self defense.

• HELD: quality of evidence weak (satellite images unclear, no fragments from that specific attack, witness testimony given 10 year after reported events and not strong anyway, President Khameini’s statement not sufficient to prove that any subsequent attack on US was by Iran, “public sources” are secondary evidence. – US failed to meet its burden of proof that Iran was ther responsible party

R2P: Libya and Syria

1. Libya

   1. High point for the Security Council, March 2011

   2. Invoked R2P, authorized use of “all necessary measures” to protect civilians at risk of massacre in Gadaffi’s Libya

   3. NATO led air-borne military operation followed

   4. Only after Gadaffi ignored SC resolution invoked R2P, demanded that Gadaffi stop violence against unarmed citizens, applied targeted sanctions and arms embargo, as well as threat of ICC prosecution.

   5. “textbook example of the doctrine working as it was supposed to”

2. Syria

   1. Rapidly climbing death tole of as many as 17,000, yet SC remains paralyzed – barely even agreeing on condemnation of violence

   2. References politicization of the SC, especially because of specific incidents in Libya situation, where interveners rejected ceasefire offers, and that they struck fleeing military personnel that posed no immediate risk to civilians and loctions that had no obvious military significance (like the compound in which Gaddafi relatives were killed), and more generally, comprehensively supported the rebel side in what rapidly became a civil war, ignoring the very expicity arms embargo in the process

   3. BRICs (Brazil, Russia, India, China and South Afria) feel bruised by P3’s (US, UK, france) dismissiveness

   4. The alternative...