Tom Ruys

The meaning of 'force' and the boundaries of the jus ad bellum: are 'minimal' uses of force excluded from UN charter article 2(4)?

Are there forcible acts that, because of their small scale or confined purposes, are not covered by the prohibition of the use of force in Article 2(4) of the UN Charter? The argument that there exists a “gravity threshold,” below which the prohibition of the use of force is inapplicable, appears to be gaining ground in legal doctrine. In a similar vein, the Independent International Fact-Finding Mission on the Conflict in Georgia stated in its report that the “prohibition of the use of force covers all physical force which surpasses a minimum threshold of intensity” and that “[o]nly very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft.” Other types of acts that have sometimes been characterized as insufficiently “grave” include operations aimed at rescuing nationals abroad, “hot pursuit” operations, small-scale counterterrorist operations abroad, and localized hostile encounters between military units. This article investigates relevant practice and legal statements from many such situations, while adding a number of conceptual observations. It concludes that excluding small-scale or “targeted” forcible acts from the scope of Article 2(4) is conceptually confused, inconsistent with customary practice, and undesirable as a matter of policy.

WEATHERING THE STORM: LEGALITY AND LEGAL IMPLICATIONS OF THE SAUDI-LED MILITARY INTERVENTION IN YEMEN

On 26 March 2015, a Saudi-led coalition launched ‘Operation Decisive Storm’ on the territory of the Republic of Yemen following a request by that country’s beleaguered government. Although it received no prior fiat from the UN Security Council and took place amidst a civil war, the intervention met with approval from numerous States, with only few critical sounds. Closer scrutiny nonetheless reveals that the self-defence justification, primarily relied upon, does not provide a convincing legal basis. Moreover, the intervention is problematic from the perspective of the intervention by invitation doctrine and undeniably exposes its indeterminacy and proneness to abuse.

Digest of state practice: 1 July 2017 – 31 December 2017

Regional Coordinators: Marie Aronsson-Storrier, Heather Brandon, Patrick Butchard, Kenneth Chan, Sina Etezazian, Ben Murphy, Sten VerhoevenDigest Contents: Europe Ukraine – Russia: violations of th...

The impact of the Kampala definition of aggression on the law on the use of force

With the deposition of the thirtieth ratification of the Kampala Amendments on the Crime of Aggression1 in the summer of 2016,2 triggering the entry into force of the Amendments, the activation of ...

From passé simple to futur imparfait? A response to Verdebout

Recent interventions carry important implications for, and challenges to, the international legal framework governing the use of armed force. Yet, as we are witnessing the futur imparfait of the jus ad bellum unfolding, it is worth taking a moment to pause and to look in the mirror of the past. In light of Agatha Verdebouts excellent piece in the previous issue of this journal (JUFIL, 1(2)), this editorial in particular questions whether the strict dichotomy between an unrestrained liberty to go to war on the one hand, and certain measures ‘short of war’ subject to legal restrictions, might be an overly simplistic representation of the nineteenth-century state of the law on the use of force. The author agrees with Verdebout that the idea of a ‘general liberty to go to war’ in the nineteenth century is probably inaccurate. At the same time, this editorial explains how the legal concepts of ‘self-preservation’, ‘reprisals’ and ‘intervention’ left significant leeway for states to have recourse to force and, more fundamentally, how international law did not condemn war as a lawful—if last resort—means of dispute settlement.

The XM25 Individual Airburst Weapon System: A ‘Game Changer’ for the (Law on the) Battlefield? Revisiting the Legality of Explosive Projectiles under the Law of Armed Conflict

In the summer of 2010, the US Army began the field-testing of a new weapon, the XM25 ‘Individual Semi-Automatic Airburst System’, which fires ‘airburst’ anti-personnel rounds that can be programmed to detonate at a certain distance. While the XM25 has been heralded as a ‘game changer’ for modern warfare, the question nonetheless remains to what extent it is compatible with the law of armed conflict (LOAC). Against this background, this article aims to examine the legality of the XM25, in particular having regard to the customary prohibition on certain explosive projectiles and the general prohibition on causing superfluous injury and unnecessary suffering.