national security

What was the International Legal Basis for the Strike on al-Zawahiri?

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(Published in Just Security, Aug. 9, 2022)

The killing of al-Qaeda leader Ayman al-Zawahiri in a CIA drone strike has been touted as a political win for President Joe Biden, a vindication for an over-the-horizon counter-terrorism strategy, and even as “justice served.” Yet there appears to be little interest in whether it was lawful. The media has not seriously raised the question, the punditry has not addressed it, and the government has not yet provided any official legal basis for the killing (to be fair, some law and policy blogs, such as Lawfare, Just Security, and Articles of War, have begun to address it). This disregard is problematic, as there are indeed serious questions as to the lawfulness of this strike – and people should be demanding answers.

Let us acknowledge up front that Ayman al-Zawahiri was the second-in-command of al-Qaeda at the time of the 9/11 terrorist attacks on the United States – which were heinous crimes, terrorist acts, and amounted to an “armed attack” against the United States under international law.

Nevertheless, his killing some 21 years later requires a legal justification under international law. What is more, the drone strike also constituted a use of force against Afghanistan, with which the United States is no longer engaged in an armed conflict – and so that too requires legal justification. This essay briefly reviews the international law regimes that are implicated (leaving aside entirely the domestic law considerations, such as the 2001 Authorization for Use of Military Force), and some of the questions regarding the lawfulness of the strike that arise under each regime – and argues that these questions are important.

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Economic Sanctions Under International Law: A Guide for Canadian Policy

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My report on economic sanctions has been published: “Economic Sanctions Under International Law: A Guide for Canadian Policy,” Rideau Institute and the Human Rights Research and Education Centre, University of Ottawa: Research Report (2021).

The abstract is below, and a short blog post that discusses the report was also published on the Rideau Institute blog.

Economic sanctions have become an increasingly favored tool of Western states in their international relations over the last several decades, but there have also been growing questions regarding the lawfulness of autonomous sanctions (those not authorized by the U.N. Security Council) generally, and so-called secondary sanctions and targeted sanctions more specifically. This report provides an examination of the nature and operation of both authorized and autonomous economic sanctions and the distinct areas of international law that govern the various forms of economic sanctions, with a view to informing Canadian foreign policy on sanctions.

The report provides an analysis of the different legal bases for possible objections that these different forms of sanction are unlawful, from claims that they may constitute unlawful coercive intervention, or be an unlawful extraterritorial exercise of jurisdiction, to claims that they violate specific principles of human rights law, or international trade and investment law. It also examines whether any such violations could be justified as legitimate countermeasures. The report finds that there is a degree of uncertainty regarding some of these aspects of international law, with differing perspectives between the developed and developing states on these questions.

The report provides a brief review of the Canadian domestic law authority for imposing economic sanctions, and places Canada’s current sanctions regimes within the context of the foregoing legal framework and analysis. Canadian law authorizes broad autonomous sanctions both against states and against individuals and private entities, though it has thus far avoided the use of secondary sanctions. The report ends with the suggestion that Canadian policy makers should take the unsettled state of the law as a cause for caution. Moreover, they should be mindful of Canada’s role in helping to shape the evolving customary international law regime, and whether the use of some economic sanctions may be inconsistent with its support for human rights, respect for sovereignty, and the international rule of law.

Geoengineering and the Use of Force

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(Published in Opinio Juris, Jan. 20, 2021).

It is now widely accepted that the climate change crisis is going to contribute to increasing levels of armed conflict among and within states in the coming decades. Less widely considered is the effect the crisis may have on the jus ad bellum regime. In a two-part essay in Opinio Juris (and in a much longer law review article), I have suggested that there will be growing pressure to relax the jus ad bellum regime when the more dire consequences of the climate change crisis begin to manifest themselves. That is, there will be mounting claims that the threat or use of force may be justified against those “climate rogue states” perceived to be recklessly and unlawfully contributing to the growing threat to international peace and security.

This argument may seem rather radical and unlikely from today’s perspective. But in this essay, I will examine how the case of geoengineering may help to illustrate just how some of the threats posed by climate change will create real tension for the jus ad bellum regime. The essay explores the hypothetical situation in which one country moves to unilaterally engage in a geoengineering scheme that many other states think will cause catastrophic harm to the climate and the ecosystem. How would the international community likely respond, and with what implications for international law?

Geoengineering

As most readers will know, the term geoengineering refers to large-scale intervention and manipulation of the environmental systems for purposes of either reducing the pace or countering the effects of climate change. There are many different avenues being explored, ranging from different methods of carbon dioxide removal (CDR), to various forms of solar management regulation (SRM). The latter is a broad category of methods that aim to lower or maintain the temperature of the Earth’s atmosphere by reducing the exposure of the Earth’s surface to the full brunt of energy from the sun.

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Climate Wars and Jus ad Bellum (Parts I & II)

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(Published in Opinio Juris in two parts, Aug. 13, 2020).

Part I

In this year of cascading crises, the climate change crisis is slipping off the radar. Not only that, but the Coronavirus pandemic and the resulting economic crisis are likely to interfere with both our will and our ability to respond to the climate change crisis. And yet, as many others have noted, there are many similarities between the pandemic and the climate change crisis, and there are lessons to be drawn from the pandemic in how we think about responding to climate change.

In this two-part essay I want to focus on how these crises implicate overlooked national security issues. More specifically, I examine how the climate change crisis will increasingly come to be seen in national security terms, and why we need to start thinking about how it will affect international collective security systems. As I have explored in a recent article (Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime), the climate change crisis will begin to exert pressure for changes to the jus ad bellum regime, and now is the time for us to begin considering and discussing how best to respond to that pressure.

In Part I of this essay I examine how excessive state contributions to climate change will come to be viewed as threats to international peace and security justifying collective action, and I examine in Part II how the jus ad bellum will be implicated, and why we need to begin now addressing the problems this will create.

Reframing Security

This is not merely about the crisis becoming securitized, but also about it causing a reframing of security. The Coronavirus crisis already has many people questioning the scope and focus of our national security efforts and expenditure, and re-framing national security in terms of human security. The threat of a flu-like pandemic was not only foreseeable, but was explicitly predicted not long after the SARS epidemic in 2003, and yet largely because the U.S. ignored the threat and was woefully unprepared, the pandemic has already killed over 160,000 people, and is projected to kill another 150,000 before the end of the year. Tens of thousands of those deaths were caused by inadequate preparation and response.

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