This is the ethics law conflict seminar discussion panel discussion on the legacy of 911.
And it's worth perhaps reminding you what's Eli Court ethics conflicts for doing is an interdisciplinary research program that aims to strengthen law,
norms and institutions to restrain, regulate and prevent conflict.
Drawing on the disciplines of philosophy, law and international relations,
Elac seeks to develop a more sophisticated framework of rules and stronger forms of international authority relating to armed conflicts.
Research activity addresses all aspects of armed conflict, including the recourse to war,
the conduct of war and post-conflict governance, transition and reconstruction.
The themes of the program are broadly the prevention and responsibility to prevent,
to protect proportionality and the laws of war and international criminal law and transitional justice,
and of course, also nuclear non-proliferation and opportunities for disarmament.
This program has a close relationship with the change in current warfare program, and I'm the deputy director of that program, Dr. Robert Johnson.
If you've not met before, this panel is going to consider the overall theme of really how Afghanistan has changed in catch of war,
because of course, that was the starting point in the post 911 legacy.
But more broadly, how this has raised new ethical and legal issues.
The speakers I'll introduce in just a moment will speak for between ten and 15 minutes each, and there'll be an opportunity for Q&A.
And I'll try my best to guide some of these discussion points. The speakers very briefly.
First of all, David Reding, who's the co-director and senior research fellow of Iraq here at Oxford,
has written, of course, many, many books, and I look through his publication list on the website.
It is a quite a repeat fest of writing.
But say suffice to say that some amongst the most seminal works that he's done, he's written Just an Unjust War, is with Henry Schein about the moral,
legal status of soldiers with Oxford University Press and has most recently been the author of Morality and Law in War in Civil Show Business.
Houston's edited the volume The Changing Character of War, published in Oxford 2010.
His next can be produced well, they may have already come out actually ending war in ethics and international affairs,
which we're pushing very much, because that seems to be sort of the moment.
And he will look at some of the areas of Afghanistan, including the broader theme of developments in law, morality today.
We've also got this Jennifer Welsh, professor in international oceans here in Oxford and at Somerville College,
who's been an editor with others of the United Nations Security Council and War published by University Press in 2008.
Also civilian protection in Libya and putting coercion controversy back into the right to protect,
which is what has come out and is coming out in ethics,
come out has come out in ethics and international affairs and also has written in international affairs an altar case of pluralism,
reassessing Vincent's views on humanitarian intervention.
I'm sure it's very well my talk today and also not least up her country, who's not only a university lecturer in public international law,
in fact of law, but also Yemeni had a fellow at St Peter's College here, Oxford.
He's written a number of things to all of which are pertinent to its discussion,
including sources of international criminal law in the Oxford Companion to
International Criminal Justice and also Working Pace paper on prosecuting aggression,
the consent problem and the role of the Security Council. And all of them have a great deal of richness to offer.
I say to tonight's discussion. So I'm going to call, first of all, on Press Welsh to get a started on this issue of the legacy of 9/11.
Everything. Well, thanks very much and thanks for coming.
And for those of you that it's your first visit to an Elac event, I hope we see lots more of you over the course of the term.
We've got some flyers at the front of the room and we have an active website.
So I really welcome you to come to as many events as your schedule allows you to.
I'm just going to start by challenging one commentator's view of 911, which some of you might have seen.
And that was Francis Fukuyama's op ed in the paper right around the time of 911 where he said,
really, I'm paraphrasing, but really this event wasn't as big a deal as we all thought it was.
The much bigger, important structural change in international politics over the last,
when we look back over 50 years will have been the rise of China, not 911.
But nonetheless, I want to suggest that that 911 and its aftermath has had an enormous impact,
if not in in strictly structural ways, although we could argue it has there, too, in terms of the international system as a whole,
certainly with respect to ethics,
law and armed conflict and the issues that we want to talk about tonight and given we don't have a lot of time, I wanted to sort of pull out.
What I'm going to suggest to you are two kind of boomerang effects.
I'm going to call them boomerangs. And that I think we went from one position to another position and back again the way that boomerangs do.
The first boomerang I think I'm more comfortable with than the second one.
The second one, I'm not quite sure it is a boomerang. And so I'd be interested in your in your thoughts on that.
So the first boomerang is really around the issue of authorisation for the use of force in international politics.
And I think the boomerang here is that we went from the immediate aftermath of 911 from a firm commitment to multilateralism,
to out here to more unilateralism and arguably back again to multilateralism.
So let me just elaborate a little bit on why what I mean.
So the Security Council resolution that was passed the day after the terrorist attacks,
1368, was a unanimous statement of support for efforts to respond against those who had,
in the words of the Security Council Resolution eight and supported or harboured the perpetrators of the 911 attacks.
And in addition to that, you may recall, in addition to the unanimous Security Council resolution, NAITO,
for the first time in its history, invoked Article five of the North Atlantic Treaty that an attack on one was an attack on all.
And so there was an enormous show of multilateral support for action.
Interestingly, though,
the United States did not at that point take up the implicit offer of a Chapter seven authorised resolution for its its subsequent actions.
It wanted to maintain Flip's flexibility in terms of how it would wage whatever action that it took.
And at that point, either it didn't seek the explicit assistance of NATO either.
Instead, what you had about a month later, October 7th, almost ten years to the day,
was the U.S. informing the Security Council of its exercise of the right of self-defence.
And, of course, that was a more unilateral or independent action involving the use of force with some close allies,
including Canada, which participated in that very early stage.
But, of course, as we know during this period, we saw later on in the case of Iraq,
although there's been lots of debate about the link between Iraq and 911,
we saw another unilateral use of force in this post 911 period without authorisation of the Security Council.
Yet I think ten years on, when we look back,
we see that multilateral authorisation and multilateral support for the use of force is more important than ever.
So there is the boomerang effect.
Of course, Iraq, which began unilaterally, became gradually after the cessation of official sort of military hostilities under the rubric of the U.N.,
the U.N. was called in to provide legitimacy to the occupation authority.
Of course, Naito, as you all know, took on a huge role in Afghanistan through ISAF.
And indeed, subsequently, we've seen actions involving the use of force which have required Security Council authorisation.
So I was struck by the fact that in the days leading up to the recent action that was taken in Libya,
Natal made very clear that it would not act unless there was a clear legal basis, and that legal basis was Security Council authorisation.
So we moved from strong multilateral support, which in fact, ironically,
the United States didn't take up in quite the way that might have been expected in the early stages to some unilateral shows of force,
back to a practice within international society where multilateral endorsement is hugely important.
Now, I wouldn't say that we can talk about this in discussion that this multilateral endorsement or authorisation is unproblematic.
It's problematic in all kinds of ways which relate to the composition of the council itself, the failure to agree, as we've seen in in Syria.
And we've also seen, of course, the incredible burden placed on Nito in terms of multilateral action and the questions that arise.
Within multilateral action about burden sharing. But nonetheless, that's kind of my first boomerang that we've sort of seen that effect.
The second is a is a boomerang in terms of the rationale for the use of force.
We moved from in the immediate aftermath of 911.
From a standpoint of reprisal and self-defence to an expansive war against terror.
And as I'll explain in a moment, accompanying that,
a huge emphasis on nation building back to potentially a must, a much more modest approach to war aims.
Now, if you cast your mind back and I was reminded of this because I found on my computer an unfinished op ed that I had started right after 911,
railing against what the U.S., if you will, for those of you who remember this, called the mission in the first couple of weeks,
do you remember it started off as Operation Infinite Justice?
Yes. And there was all sorts of opposition and criticism, particularly from Muslim groups in the United States,
who said, you know, it's only God that meets our justice.
And of course, so they changed the name very quickly from Infinite Justice to operating Operation Enduring Freedom.
But the change was more than in the name.
There was a change in the mission itself.
And it and it struck me that George Bush, who had campaigned during his time as the Republican nominee against nation building,
explicitly said, you know, we don't do nation building.
Very quickly became by the end of October 2001, embracing nation building as a part of the the war aims in Afghanistan.
And in addition to that, humanitarian concerns became very central to the evolving rationale.
Now, I think there were two reasons for that.
One, having to do with an evolution in American thinking itself about what was required to to win this war and a belief that sort of
harkened back to some of the thinking that had gone on and that in the course of counterinsurgency campaigns decades earlier,
about winning hearts and minds of the Afghans. And so humanitarian rationale became very quickly a huge part of the justification,
but also because a number of other states were becoming involved in the Afghan campaign, particularly with the creation of ISAF.
And when you think about that development and of course,
a big part of the Afghanistan war has been the involvement of U.S. allies in very significant
ways that they themselves needed to embrace a much wider conception of their national interest.
And I think this is something that's quite remarkable about the last decade,
is how the national interest as a rationale for action, military or otherwise, was expanded in this period.
Of course, it was expanded in the sense that an attack on that was harboured in one region of
the world could literally activate the armed forces of states like Germany can,
and not just the United States in such a dramatic way.
But there was also, if you look at the national security strategies of the U.S., the European Union, Canada, Germany,
how they began to talk about the national interest and the impact of transnational threats like terrorism,
globalisation, that it was no longer threats close to home that activated the national interest.
But there was also, even if you were to to strip away security threats,
a civilizational message that came through some of this expansion of the national interest.
That answer and this was very much Tony Blair's, I think, approach to the expansion of the national interest.
And it began with Kosovo,
but it certainly expanded after 911 that as a civilised nation the UK had to respond to uncivilised acts wherever they occur.
Now, this this led to a number of dimensions, which I think Daniel and David want to talk about.
The one that I just want to flag that I think is hugely important for thinking about how 911 and its aftermath changed.
The character of war was, of course, the the on the ground activities that were associated with nation building and a humanitarian war.
And in particular, what was very much in vogue, particularly in the in the mid 2000,
the joining together of defence diplomacy and development that on the ground now you had military officers,
development agency representatives and diplomats all engaged in a common enterprise.
And this had enormous implications for how those organisations worked together for what was in the remit of their activity.
And I'm thinking particularly here, of development agencies who hadn't engaged in such fraught security environments in quite the same way.
But it also meant for some development and humanitarian organisations that they're on militarised space that they were used
to operating in became very securitised and there were all kinds of implications of that which were still living with.
Now, I guess the question I have for all of you that I've been thinking about is, has that been a boomerang, too?
Are we moving from a much more self-defence reprisal rationale to begin with for the waging of military force,
the boomerang out to an expanded conception of the national interest, humanitarian war potentially back again.
And there might be all kinds of reasons for the boomerang back.
Most flat, most flat footed, if you will, would be just sheer budgets of industrialised countries and their militaries.
But also I think perhaps as a result of the Afghanistan experience and you see it even now in
the rhetoric of what we're trying to achieve in Afghanistan and how that has been scaled back,
a return to a much more limited and much less ambitious agenda, whether that's a bad or a good thing we might discuss,
and whether you agree with me that there's been a complete boomerang.
As I say, I'm still not completely convinced myself, but that's what I wanted to throw out for discussion today.
So I'll stop there and turn immediately to David and ask if you would like to comment on them.
Thank you very much. Well, just to reiterate, Jennifer's warm welcome to all of those of you who have not been great events before.
It's great to see you here. We will see a lot more of you. And also just a word of thanks to our chairman today.
Rob, it's great to have you here, even across the floor from CDW together.
It's really wonderful to be able to do this this joint event. So thank you.
So I wanted to reflect a little bit about or on the changes that I've seen occurring within
the the ethical norms in space and in our approach to warfare in the last ten years,
since 911.
And I think what's really striking is for anybody who has been involved in with military organisations or in the military space or even as a,
you know, as a casual observer, it's just been striking the transformation that has occurred in in in a very,
very significant number of areas within the way that we think about the ethics, the morality of using force.
So what I want to do is reflect on a few of the changes,
as I've seen them reflect a little bit about what the causes of those are and what relation that has to 911 itself.
And then just a little bit about where we may be going from here.
So I mean, as a philosopher, which is my discipline within the philosophical tradition,
questions about the ethics of war are traditionally divided into two components the so called and bound,
which are considerations around the justification for going to war and the so-called goals in
below which are the rules or regulations for how one ought morally defined when one is in war.
And I think what's very interesting is that over the last ten years,
there have been almost contradictory tendencies occurring within the anvil and the envelope.
What do I mean by that?
Well, I think what we've seen on the anvil inside has been a number of expansions or attempts to expand the right to go to war,
to have recourse to war. Whereas what we've seen on the other side has been a very substantial contraction or
tightening in terms of the regulations of what is permitted to be permissible conduct,
at least for Western forces. Engaged in the kinds of wars that we've seen since 911.
So let's start with the ambulance side first. So one of the most striking, I think,
of these expansive revisions of of justifications for going to war has been the development and and
acceptance and corporatisation of the norm of responsibility to protect the of a huge amount of work on.
So this was obviously a an idea that was attempting to come to grips with a problem that had been inherited from the nineties and earlier.
The question of when it was permissible for a state to intervene militarily in the affairs of
another state when they were engaged in atrocity or genocide against members of their own community.
And a body called the International Commission on Intervention State Sovereignty, funded by the Canadian government,
produced a report almost at the same time as Monaghan proposing a concrete ization of of this norm.
This was was then substantially ratified in 2005 for the UN General Assembly.
The document and the norm itself had a number of elements of which military intervention was only one component.
And for a substantial part of the 2000, as many people thought that was, that would be that the less important,
the less significant element of it that Libya, I think, is really once again place that front and centre.
And to my reading the debates now are very much around around when to intervene in these desperate situations,
how to intervene that that that kind of fundamental assertion that there can be a
moral and also legal rationale to intervene has has quite substantially been settled.
There was one very clear example of how the antebellum rights of them had been developed during the 2000.
Two of the areas in which this had to a lesser extent been a development of the had been,
I think, involved a an idea that there was a right to engage in preventive action.
So one year after the 911 attacks, the Bush administration published their national security strategy,
in which the administration asserted that there was a right for states to engage in preventive action.
They didn't refer to it as prevention, but that's effectively what it was. Prevention of action against an emerging threat.
And before that threat had actually attacked and perhaps before that threat had even become a real and concrete threat.
Now, this I think this kind of proposed or emerging norm never really gained the traction.
That responsibility to protect it was remained very, very marginal, very, very disputed.
And I think that the the the, you know, within the legal school, as within the moral and within moral thinking,
that had a very, very substantial pushback against that attempt to develop this this new and more expansive norm.
A third developing expansive norm that I think we've seen within the ad bellum context, which is very much to Afghanistan,
was a a an expression of a justification for using force against a state that had not itself used force against you attacked,
but had facilitated others in attacking you.
And this was exactly the case of Afghanistan.
So the rationale for US intervention in Afghanistan was not that the Afghan government had itself attacked the United States,
but that it facilitated Al Qaida's attack and had failed to hand over Osama bin Laden, another of its own, following that attack.
Now, again, I think that that that is that was a new norm.
I think it was not explicit before. And I think that that probably lies somewhere between the responsibility to protect and prevention.
Dawn I think it's gained some currency, but I think that there's still there's still dispute and controversy over that.
So that's on the admin side. Now, I think what's really striking is when you contrast that with how Western states have actually fought their
interventions in theatre such as Afghanistan and Iraq and their rather than an expansion of war rights,
you've seen a very striking and substantial contraction.
I think you can you can see this in a whole range of different contexts.
But one very striking context is if you look at the way that Western armies have configured their rules of engagement.
So at least within the last within the last 2 to 3 years, rules of engagement have been very,
very restrictive to the point that strikes against predetermined targets essentially are done
now with the presumption that there will be no civilian civilian casualties whatsoever,
at least that that that has to be the reasonable presumption going into these attacks.
If the situation is different, if it's a situation of, for example, close air support being called in.
In the context of of an active engagement where one's own troops are on the line.
But even there with the the approach that was that was really developed by David Petraeus
and substantially continued through the through the tenure of Stanley McChrystal,
it was a much more restrictive approach to to issues like like civilian collateral damage.
So this is the kind of a very striking and very striking divergence, as it were, to really, you know, very,
very new developments in the way we were approaching war since 911, seeming to pull in different in different ways.
So what could be lagging behind that?
Well, very difficult things to to assess, because these developments obviously have had a whole range of different strategic,
political, legal and moral determinations,
but to two philosophies by one very, very clear element in this transformation has been what you might call the individualisation of warfare.
What I mean by that is the fact that individuals and small groups of individuals, but not states, are increasingly playing a role within warfare,
both as protagonists, but also and very significantly as bearers of rights within theatres of war.
And that idea of individual human rights and persons within the theatre of conflict as bearers of rights,
I think has had a really profound transformation in the way that theorists of the
ethics of war have viewed a whole range of questions within the ethics of war.
And I think that that that kind of normative push, as it were, has had a very significant effect on the way that soldiers are conducting operations,
I think has had an effect on on the shape of the emerging shape of the law as well.
So how is this kind of individualisation, this focus on individuals as bearers of rights and as actors?
How is it kind of being responsible for this, for these developments?
Well, I think the connection with the development of responsibility to protect is very, very clear.
So it's it's the conception of individuals as bearers of rights that has really enabled the argument that was originally made by Iraqis.
The argument that says that state sovereignty is conditional on respect for human rights,
where that respect and protection for the rights of individuals is not present.
The sovereignty of states can become forfeited in particular ways.
There's a very, very clear implication there on prevention and the right to use force against
those who haven't attacked but have harmed harboured those who do attack.
That connection, I think, is less clear. But I think what what's really striking in that debate is that the debate was
posed very much in terms of rights of self-defence and the right of self-defence,
although that can be viewed as as pertaining to, as it were,
states state's right of self-defence against other states has also increasingly been cast in terms of rights of individual self-defence.
So if you think on the other side of that argument, if you think of those like myself who were arguing against the Bush administration's
expansion of the right of self-defence to include preventive action,
one of the primary arguments that was made there was to say, look,
individuals become liable to defensive force because they have engaged in a wrongful act, a wrongful attack against others.
In cases of preventive military action. This is really problematic, right?
Because you're using military force against the state and also against soldiers
who have not yet engaged in a wrongful armed attack against other parties.
So how can we understand those armed personnel, those soldiers that you would kill in a preventive war?
How can we understand those as justified killings in the sense that the persons who are
using military force against have done something to forfeit their their their rights.
So I think we see the language of rights, the status of the individual appearing very, very strongly within that debate as well.
Now, when you look at the had a more kind of tactical questions, the Petraeus doctrine, the McChrystal doctrine,
what a lot of people would say is, well, you know, it wasn't so much ethical motivations.
It was it was a realisation that the strategy had to change because the previous strategy was not working.
Now, I think that's true up to a point, but you have to ask the question, well, you know,
why was this previous strategy not working or why was the realisation made that the more civilian deaths you had,
the stronger you made the insurgency? Well, part of the explanation to that, I think, obviously,
is that there has been a shift in the acceptability around the moral acceptability of those kinds of harms to civilians.
And I think that that shift has also very substantially had at least at least within
the West have to do with the rise of the idea of individuals as bearers of rights.
I think we see it very, very strongly here as well. So we're.
Where are we kind of going from here? And I think maybe I'll just end by very briefly discussing a development that I think kind of perfectly
encapsulates these dynamics and the unstable point at which we've arrived in this development process.
And that is the use of drones and unarmed weapons to target particular individuals, as we had with the killing of other one.
Either way, what how lucky. Our lucky if you are lucky.
Now, what's really striking about that is, first of all, it's it's a perfect example of the individualisation of the use of force.
Right.
Rather than targeting the person qua combatant, we're targeting it as the person he is for the particular act that he as an individual has taken.
And we do that in a very, very individualised way, using a lot of intelligence and using highly,
highly accurate targeting technologies, which we which we hope will not will not kill civilians nearby, which often does.
Now that killing produced a great deal of anxiety within the US and the and the, the discourse here was not so much about human rights,
but about constitutional rights, of course, because he was an American citizen.
But you can see that this is this is on the spectrum of the same idea.
Now, you know, as soon as you pose this question from from the kind of question of human rights,
it's a bit of a paradox here, because on the one hand, you know, if we believe that people have rights,
that they that they only lose by engaging in certain kinds of wrongful action,
then killings like the killing of our own, well, I think ought to be seen as all to the good, right?
You're killing a person because of the things that he has done.
We can argue about whether in that case the killing was was justified.
But there's a case there that that this person was being killed because of the action that that he has taken.
Now, the worry, of course, as you know, is that, well, you know what?
You know,
what does it say about a state who's willing to engage in essentially an extrajudicial killing on the basis of intelligence that probably would
never stand up in court and without all of the due process rights that we've come to expect of a civilised and morally justified government.
I think it's a very real concern. But if you then transform that set of concerns into the context of a of a normal military campaign where you are
killing persons simply because they're wearing a uniform without any regard to their individual responsibility,
culpability, liability for the action in question, then it's really a different order of magnitude of concern.
So it's really I mean, I think it's a very interesting example because it really it really it really highlights the the kind of complete disconnect
in terms of the way that we think about justifications for using lethal violence within a context that looks quasi judicial.
Assume it as we are naming and targeting an individual person and the kind of, you know,
at one level quite indiscriminate random killing of persons in a way that is entirely disconnected from their agency,
individual responsibility or individual liability. And I think that that that kind of disconnect and raises really,
really interesting and troubling questions as we as we work through the way that these developments might pan out in the next ten years,
whereas at the end of the judicial initiative, because immediately to the present day to pick up on the legal aspects of they don't succeed.
Thank you very much. What I want in addition to thanking Rob for chairing the event,
I just wanted to say that Rob himself is an expert on these issues from yet another disciplinary perspective, and he's written on what this is.
Hot off the presses. Yeah, it's Rob's new book, The Afghan Way of War Culture and Pragmatism A Critical History.
So that provides yet another perspective looking at these issues.
I want to pick up on actually one of those issues that David touched upon when he was talking about the youth and Berlin.
And one of the things that David talked about was the argument that a state can use force against another state
that hasn't attacked the state itself or has harboured or supported groups that have carried out the attack.
So what I really want to focus on are the changes in international law since 911 and arising as a direct result of the response to 911,
the changes relating to the use of force by states against non-state groups.
Right. This is a direct result of of 911 because of course, this was the response to 911.
And as I will try to describe it in the time that I have the justifications that were employed by the US and others in
going into Afghanistan are justifications that have since been employed by many states and in a way which goes completely,
which is completely at odds with the position before 911.
So the question essentially is this to what extent can a state use force in self-defence against a non-state group
that is based on the territory of another state when that of the state is not directly responsible for the non-state?
So that's the question. When can a state use force on the territory of another state against a non-state group when
the state where the force is being used is not directly responsible for that non-state group?
Now, let me take you back to the position before 911, both in terms of the legal position and I think the generally accepted practice.
In international politics as well.
Now, in 1986, the International Court of Justice delivered judgement in a case which is now called the Nicaragua case.
It was a case between Nicaragua and the United States of America.
Nicaragua brought the case against the US,
alleging that the US had unlawfully used force against Nicaragua by supporting the Contra rebels who were operating in Nicaragua.
The US argued that it was acting in self-defence.
To be more precise, it argued that it was acting in collective self-defence.
So the US said we are using force against Nicaragua in support of the surrounding states that are bordering in Nicaragua,
namely El Salvador, Honduras and Costa Rica.
Because the US said Nicaragua was supporting rebel groups in those countries, particularly in El Salvador.
So the basic argument was this.
Nicaragua was providing arms and logistical support and bases for rebels who were fighting against the government of El Salvador,
but who were based in Nicaragua. The International Court of Justice held that that may be true,
that Nicaragua was providing these rebels with financial assistance, logistical support, possibly bases,
but that this did not amount to an armed attack within the meaning of Article 51 of the UN Charter,
which entitle the United States and these other countries to use force against Nicaragua.
This is 1986. So eventually the International Court of Justice held providing financial assistance.
Logistical support does not rise to the level of an armed attack.
It may be unlawful, but it does not justify a use of force in self-defence.
One question, of course, we have to ask ourselves is was the ICJ an outlier in saying this in 1986?
I suggest that the Court was not just the year before the UN Security Council had adopted a resolution
which had unanimously condemned Israel for its attack on the PLO headquarters in Tunis in Tunisia.
What was the Israeli argument, an argument that Israel had used, of course, consistently in the seventies and 1980s,
that there is a non-state group or terrorist group which is based in Tunisia,
i.e. the PLO, which is plotting attacks and has carried out attacks against Israel and were entitled to
use force on the territory of Tunisia or any other state against this non-state group.
The Security Council had on a number of occasions condemned South Africa in the 1970s for a similar type or pattern of attack.
If you recall, in the 1970s, South Africa conducted raids against the so-called front frontline states,
i.e. Mozambique, Angola, etc., etc., basically using the same argument.
There are these terrorist groups that are based in these countries conducting attacks
against us and we are entitled to use force against these countries as well,
against these non-state based in those countries.
These countries complained repeatedly and even in the Security Council they found support for this argument.
So despite the protests of the United States in 1986 and the judgement in Nicaragua,
it was condemned by a number of American well commentators particularly.
But I suggest that the position that the ICJ took in 1986 was not outside the frame
of reference that had been applied in international law and by by international
organisations at the time that first and essentially the position was for a state to
use force on the territory of a non-state of another state against a moderate group.
You had to show a strong link between the state on whose territory the force
was being used and the non-state group against which you were using force.
And the ICJ said this link had essentially to be one of sending.
You had to show that the state that you were attacking has set or has effective control
over that non-state group and this language from a General Assembly resolution.
Now, why did the ICJ say this? Remember, this is the Cold War where we had or the context is the Cold War,
lots of proxy wars, practically every civil war that took place at that time,
maybe still now there was there was support for the rebel group or the non-state group by an
outside power in terms of providing weapons or finance or some sort of logistical assistance.
If you think about it, unless the rebels make the weapons themselves, they must be getting it from somewhere else.
And the logic was, if you allow attacks against any state that provides weapons, you automatically internationalise any civil war.
You provide justification on which any civil war can be internationalised, and it also provides for escalation.
So this is our world pre 911. Okay.
There is controversy about this. Israel is very unhappy about this.
South Africa is very unhappy about this.
But on this issue, I would suggest that there were parties, even the U.S. and that's why I stressed the unanimity in the resolution in 1985.
Even the US occasionally, but repeatedly took the view that this international law did not allow for this type of use of force.
That's where we were on the day before September, September ten.
So I was trying to convert the deeds. I was going to say on 811, and then I thought, no matter what.
910 was that right? 910 You know, you know what I mean?
The day before September 11, anyway. 910 That's that's our world.
910 So what happens after September 11?
As we know, a few weeks later, Air Force was used, as has been described by Jennifer and by David Rohde talked about in his book Against Afghanistan.
Right. And here the US is now making an argument which is at odds with this position that was taken before 911.
The US argues that I'm sure you all remember George, but actually I'm sure you don't all remember.
This is the. Yeah. Excuse me. Excuse me. This is a detour.
This is ten years on set on the assumption that some of you are undergraduates or graduate students, you're probably 12 or 13.
And this this is one of the depressing things about being an academic.
The entry and speech stays constant, but every year passes by and we are one year older anyway.
And I'm sure you all know you don't look. Thank you. Thank you, Robert.
You all remember George Bush saying specifically, you're either with us or against us.
We're using force against those who harbour as well.
And this is the big challenge. The assertion that it is legitimate to use force against those who harbour.
And this position that was taken by the US is a position that was endorsed
quite widely by a number of states who Jennifer referred to Resolution 1368,
which was passed on. Nine, 12 and 1368 accepts that the US has the right to self-defence.
In other words, they accept the US argument and the UN Security Council repeats this in resolution 1363 1373.
Jennifer mentions again, NATO's for the first time invoked its collective self-defence provisions in Article five of the North Atlantic Treaty.
So this is all native of countries accepting that the US has a right of self-defence.
But of course the US only has a right to self-defence against Afghanistan.
If you accept that the US is entitled to attack countries who do not just send but who also harbour the OAS.
Collective Self-defence Provisions Organisation of American States was also involved.
The Arms Treaty, Australia and New Zealand. US, with a similar collective self-defence provision was also invoked,
so there was quite widespread support for this position that was taken by the US.
So this is the direct legacy of 911. But what is more significant about this is that this argument has not only been invoked by other states,
but it has now been widely used in a number of conflicts across the world.
So this is now taking it away from the the Afghanistan context.
But we see Turkey going into northern Iraq on several occasions since then, using basically the same argument that says there are terrorists.
Of course, everybody's a terrorist. Now, on the other side in Afghanistan, this are in northern Iraq, and we're entitled to use force.
We see Russia using precisely the same argument going into Georgia to take action against Chechen rebels.
We see Rwanda, Uganda.
We went into the DRC again in this period since 911.
This led to another ICJ case that I will come to and taking action against non-state groups.
They went into the Democratic Republic of Congo not to fight against the armed forces of the Democratic Republic of Congo,
but to fight against non-state groups that are based in the DRC.
We've seen Colombia use force in Venezuela against rebels.
So how many continental are going through now have gone through Europe, Africa, South America.
We've seen recent.
Not like what people are in 2010.
That is last year, 2010, 2010. Saudi Arabia using force in Yemen without the consent of of the Yemeni government.
This is now widespread. Countries using force against non-state groups based on the territory of other states with this same justification.
And of course, the US has taken the same argument and used force in a number of other of the countries Pakistan, Yemen, Somalia.
You know that very many countries and this has become, I would suggest, one of the defining features of armed conflict today.
Many armed conflicts that are of a transnational character do not involve two states fighting each other.
Many of them involve one state using military force across the boundary.
But again, a non-state group. And this is all premised on the assertion that it is justifiable to do this.
Now, what's the position in international law? I suggested that in the Nicaragua case the ICJ suggested that this was not lawful.
But international law is based on well, in large part on customary international law and state practice.
And The Hague practice is now so widespread that I think it is difficult to argue that the law has not changed since 911.
I think this is one of those areas when we can see a direct impact on law making of the actions that happened after 911.
Having said that, the International Court of Justice in a couple of cases,
in particular the advisory opinion that the ICJ gave on the Israeli wall in the occupied Palestinian territory.
The ICJ has said in that case and another one it held on to its view, its 1986 view.
The majority of the court, some of the judges in their separate and dissenting opinions, criticised the majority for holding on to this view.
But they've more or less held on to their view that there needs to be standing by one
state of this be before that state becomes liable to a use of force in self-defence.
I think the Court, as a matter of law, is wrong to do that.
I think the practice has changed and it has decisively changed, but the court has held on to that.
Let me just turn to another issue,
and this is the issue of how some of these changes have had an impact on abuse even better from a legal perspective.
In other words, the rules that govern the conduct of operations during an armed conflict.
So one of the key questions that has arisen as a result of this phenomenon that I've just been talking about,
one of the key questions is how do we characterise these transnational conflicts against non-state groups?
Because international humanitarian law, the law of armed conflict divides armed conflicts into two.
We talk about international armed conflicts and we talk about non international law.
And the significance of this division is that the rules that apply in international armed conflicts, i.e. state to state conflict,
are more numerous than the rules that apply in non-international armed conflicts, or what one might have called internal wars or civil wars.
But I'm sure you can see that these types of conflicts that I'm talking about now appear to straddle these divisions.
So on the one hand, these conflicts are transnational. They do not involve a state using force on its own territory, as you would see in a civil war.
And one of the reasons why the rules in internal conflicts are more limited is because states have been
more reluctant to accept the regulation of international law when dealing with these internal conflicts.
And I'll just touch very quickly on one of those changes. So on the one hand, the use of force is transboundary, transnational.
But on the other hand, the use of force is, as I know people would say, asymmetric.
It's not a state, one state. So it has features both of international conflicts and features of non-international armed conflicts.
And this means that actually very significant questions in relation to, for example, rules relating to detention.
And this is one of the significant issues that has dogged the US policy in relation to Guantanamo,
in relation to detention in Afghanistan and elsewhere. International law, the international law,
rules of of armed conflict by itself has very detailed rules relating to detention in a non extreme, an international armed conflict.
Either you are considering whether a person is a prisoner of war or there are very detailed rules to do with detention of civilians.
With non-international armed conflicts. We have nothing, no rules at all.
In international law. And this is the problem that the US faced in Guantanamo, in the sense that on the one hand the US was arguing that,
well, we're fighting against this non-state and therefore this is not an international armed conflict.
But on the other hand, they were saying, look, we are using force abroad.
And they're saying that this was also not an internal armed conflict.
So effectively the US was suggesting that we have a legal black hole here.
This is neither international nor is it non-international.
And effectively they were saying no law applies in that space.
Now they've since changed their position as a result of a number of cases in the US Supreme Court.
But the fleshing out of the rules has continued to be a problem relating to U.S. detention policy.
It's also continued to be a problem depressing out of the rules in relation to some of the targeting decisions that David was talking about.
One of the key questions that arises here is what is the geographical scope of this armed conflict with Al Qaida?
Again, you'll recall the rhetoric. This is a global war on terror.
If it's a global war on terror against al Qaeda, it means we can fight anywhere in terms of we can target anywhere as long as we deem this
person to be associated with Al Qaida or we can detain anybody anywhere on the globe.
And a large number of the people in Guantanamo Bay were picked up in several places.
Gambia, Bosnia. Who knows? Oxford.
You never know. But if it is a global war on terror, everywhere is a theatre of war.
And those rules apply. And this is one of the challenges in trying to apply international law to this type of conflict,
which, as I say, is prevalent now just outside the so-called war on terror context.
A lot of things about this type of a lot of states assert this rationale and
therefore also assert that they're engaged in conflicts with non-state groups.
Will stop the action that is extremely good timing and a what is actually a very rich trinity among the themes of terrorism.
I am very delighted that some as an office Neal to study studying countries that we've got now not just some changes in the culture of war,
but something about the unchanging nature of wars, clashes with individual people, the clash of reason, passion and chance seems to be still alive.
This dynamic wars, which we are all talking about, is to light just while you gather your thoughts for questions.
Let me just summarise if I can, and just for a moment, the boomerangs of multinational, multinational multinationals and unilateralism,
self defence and expanded expression warfare, conventional war, too comprehensive approach and perhaps even potentially transformation.
David Talking about changes in the philosophical underpinning of going to war and conduct in war with questions remaining over
things such as the status of proxy war states in the defining of combatant status and in the roles and responsibilities of states.
And then also then a reminder of the the problems of war against those states which harbour terrorists or accused of harbouring terrorists.
That profound change after 911. Now, of course, as you were just saying,
there really the difficulties of dealing with those suspects for a better terms within states when you operating against them or even within one's own
home state in dealing with detainees and a case of sort of oppressing and
assassinating Osama bin Laden within the sovereign states of another country,
it seems to me to speak very loudly to him what he was saying to.
So I say very rich. Translate. I hope you've got lots of questions.