Law Commons^™

The Popular But Unlawful Armed Reprisal, Mary Ellen O'Connell

Journal Articles

The United States and Iran carried out armed reprisals in Syria during 2017 in the wake of chemical and terror attacks. Despite support for their actions even by countries such as Germany and France, retaliatory uses of force are clearly prohibited under international law. International law generally prohibits all use of armed force with narrow exceptions for self-defense, United Nations Security Council authorization, and consent of a government to participate in a civil war. Military force after an incident are reprisals, which have been expressly forbidden by the UN. Prior to the Trump administration, the U.S. consistently attempted to justify …

The Law On Lethal Force Begins With The Right To Life, Mary Ellen O'Connell

Journal Articles

In August 2015, the UK government intentionally killed a criminal suspect and the bystanders with him using a drone-launched Hellfire missile in Syria. In doing so, the UK violated the right to life of all three men because the UK had no lawful basis for deploying military force in Syria. Even if it did, international humanitarian law, governing the conduct of armed conflict, prohibits assassination – the intentional killing of an individual for reasons other than advancing a legitimate military objective. In any actual cases of ambiguity, the legal presumption in international law is with peace and protection of the …

What Is Aggression?: Comparing The Jus Ad Bellum And The Icc Statute, Mary Ellen O'Connell, Mirakmal Niyazmatov

Journal Articles

Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into …

Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell

Journal Articles

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the …

Rules Of Evidence For The Use Of Force In International Law's New Era, Mary Ellen O'Connell

Journal Articles

International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism. Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. It seems to me, however, that we need a law of evidence in international law, especially for the international …

Introduction And Postscript: Partial Progress On Un Reform, Douglass Cassel

Journal Articles

The conference on Reforming the United Nations: The use of force to safeguard international security and human rights, co-sponsored by Northwestern University School of Law and the Katholieke Universiteit Leuven Faculty of Law as their Fourth Annual Transatlantic Dialogue, was held in January 2005.

Its timing was propitious. It was held one month after publication of the report of the prestigious and geographically diverse High-Level Panel on Threats, Challenges, and Change, appointed by UN Secretary-General Kofi Annan. Among many other proposals to reform the UN, the High-Level Panel recommended expansion of the Security Council, new guidelines for use of force …

American Exceptionalism And The International Law Of Self-Defense, Mary Ellen O'Connell

Journal Articles

Following the September 11th attacks in the United States (U.S.), one could make a case for America's use of force in Afghanistan as a lawful exercise of the right of self-defense. But the proposals to invade Iraq following September 11th cannot be so defended. Those proposals did not concern defending the basic security of the U.S. in the sense that basic security defense is currently understood in the international community. They concerned, rather, defense of a more expansive concept of security, a concept wherein the U.S. need not tolerate antagonistic regimes with the potential to harm U.S. interests. The invasion …

Regulating The Use Of Force In The 21st Century: The Continuing Importance Of State Autonomy, Mary Ellen O'Connell

Journal Articles

The most important, and certainly the most ambitious, modification of international law in this century has been the outlawing of the use of force to settle international disputes. The definitive prohibition on the use of force came with the adoption of the United Nations Charter and, in particular, Charter article 2(4).

For a short while, from 1991 until 1994, it appeared that a majority of Security Council members had re-interpreted the Charter's order of priorities. To some, it seemed that the Council had placed such values as human rights, self-determination, and even democracy above the value of peace through respect …

Terrorism, Territorial Sovereignty, And The Forcible Apprehension Of International Criminals Abroad, Jimmy Gurule

Journal Articles

Examines current international law governing use of force extraterritorially; in light of the Alvarez-Machain case in which a Mexican national suspected of murder was forcibly extradited to stand trial in the US.