INTERNATIONAL LAW: USE OF FORCE Winter 2024 Self-Defence Memorandum: Background Information The State of Grace is a prosperous nation located in South America. Its extensive commercial power has allowed it to develop and maintain a modern conventional military force, with technologically advanced air, land and sea assets. This small but strong military has proven an effective deterrent. Grace has not been involved in any military conflicts in almost 70 years. However, the current Gracian President, Josiah Bartlett, is now considering the possible use of substantial military force to respond to a growing threat from the neighbouring state of Flux. Flux is a larger but much less prosperous nation located immediately to the north of Grace. Grace and Flux have been independent states for over two hundred years, within their current borders. However, up until the nineteenth century they had been united within the Kingdom of Flux. Grace gained its independence following a successful rebellion of its inhabitants in 1812. In the early 1950s, Grace and Flux fought a brutal war which cost the lives of over one million people. This is the only war that either country has fought since the 1812 rebellion. Four years of violent stalemate ultimately resulted in a peace treaty between the two states and their formal commitment to continue to respect their original borders. While Flux blamed Grace for the outbreak of the conflict, independent assessments indicate that Fluxwegian militarism and nationalism were a more likely cause: a key rallying cry of its political and military leaders was the need to "reunite our traditional homelands and rebuild greater Flux". However, neither state was ever formally characterized as an aggressor by the United Nations Security Council. Although the two states agreed to end their armed conflict in 1956, they have not re-established any formal diplomatic ties. There is still no trade between Flux and Grace, despite their peace agreement. Nonetheless, since 1956, Grace has frequently stated its desire to normalize peaceful relations with Flux - efforts which have been consistently rebuffed - and it has never threatened or even contemplated military action against it until now. While the standard of living in Grace has risen dramatically over the past sixty-plus years - largely due to the discovery of vast oil reserves on its territory in 1970 - the same has not been true for Flux. Economic stagnation and extensive poverty in Flux have led to widespread and growing popular resentment of Grace. The hereditary leader of Flux is Supreme Commander Kim Jongduro, who came to power in 2017 upon the death of her father. She is direct descendant of the original King of Flux. Drawing on popular resentment of Grace to strengthen her rule, one of her first acts was to entrench within the Fluxwegian Constitution "the ultimate and ever noble goal of territorial reunification and the re-establishment of Greater Flux, whatever the cost". Supreme Commander Jongduro has also vigorously condemned Grace in numerous public speeches, calling for the "righting of historical wrongs, by whatever means necessary". In 2022, she ordered that official maps of Flux be re-drawn to reflect the historical borders of the Kingdom of Flux, thus incorporating all of the current territory of Grace within its borders. In addition, she recently adopted many of the official symbols of the earlier (wartime) Fluxwegian regime, which hadn't been in use since the peace agreement with Grace. Over the past five years, the Fluxwegian government has also vastly increased its military spending (by diverting money from education and other social programs), rapidly boosting its conventional military capabilities and numbers to a level surpassing those of Grace. Recent successful tests of the Sabre, a medium-range missile capable of hitting anywhere in Grace, were applauded in government-controlled newspapers as "arrows to strike our nearby and ever-present enemies [...] the sooner the better." Flux currently holds over 400 Sabre missiles in its arsenal. During the spring of 2023, the Fluxwegian military carried out massive 'war games' in regions throughout the country, involving simulated ground attacks on fortified positions resembling Gracian border posts and other military buildings (though without Gracian national markings and referred to only as "red forces" in Fluxwegian military communications). However, all of these exercises took place at least fifty kilometres from the border with Grace. During this exercise, Flux retained but did not increase its regular defensive military presence directly along the border with Grace. Grace has now been notified by Flux that further large-scale 'war games', involving almost all its armed forces, are scheduled for early February 2024. Supreme Commander Jongduro has characterized them as "necessary deterrence to prevent pre-emptive Gracian imperialism from leading it once again to reckless military adventurism as it did in the 1950s." She has further indicated that the first day of these exercises will involve a Sabre missile test over Fluxwegian territorial waters, followed by large-scale land and air force training beginning the next day. Over the past month, Fluxwegian military forces have been slowly massing, but this time only in the territories directly neighbouring Grace and with most forces now stationed within five to ten kilometres of the border. The Director of the Central Intelligence Agency of Grace has recently notified President Bartlett of her concerns that the upcoming 'war games' are, in fact, "a pretext for an invasion of Grace". Despite her concern, the CIA Director could not point to any incontrovertible intelligence supporting this conclusion. A trusted high-ranking informer within Supreme Commander Jongduro's inner circle has indicated that Flux "absolutely intends to attack Grace within the next year". The informer indicated that it was "possible" that this attack would be launched during the upcoming exercises; however, he also noted that "it is more likely" that the exercises would simply be the final practice for an invasion intended for later this year or early 2025. He was nonetheless able to provide the text of a recent speech by Supreme Commander Jongduro, behind closed doors to key members of her regime, noting that "we will soon have the power to destroy all those who threaten us, to wipe our enemies from the map and to regain what is rightfully ours at the time of our choosing". The CIA Director has also raised serious related concerns regarding the impending Sabre missile test, specifically in light of credible reports that the Fluxwegian military has developed a unique conventional explosive weapon capable of destroying an entire city block. In early 2023, Flux successfully conducted its first and only underground test of this weapon, catching intelligence services around the world by surprise. The CIA now believes, with "80% certainty", that Flux has developed an even more powerful conventional weapon and has modified and miniaturized it for delivery on a missile; it also estimates that Flux has at least fifty such warheads. While the Sabre missile is thought to be theoretically capable of carrying such a warhead, the CIA is "absolutely certain" that Flux has not yet actually tested this specific capacity in practice. Relying on information from various informants, the CIA Director believes that the upcoming missile test will likely confirm this capacity. If this testing is successful, the CIA Director believes that Fluxwegian military forces will immediately place their existing warheads on Sabre missiles and house them within deep underground concrete missile silos - constructed over the past two years - that cannot be penetrated or destroyed by existing Gracian weapons systems. Gracian military commanders support this assessment. In a rare departure from its policy of not communicating with Flux, Grace has sent multiple protests to the Fluxwegian government - the latest in early January 2024 - indicating that it "must immediately and without limitation stop its continued development of Sabre warheads, which poses a direct threat to Grace. We want nothing more than to live in peace with Flux." Flux's only official response was a diplomatic cable noting the receipt of Grace's message and indicating that it considered the matter "of no immediate concern to the imperialist dogs of socalled Grace". The same message notified Grace of its upcoming military exercises. President Bartlett now wants to order a Gracian military strike against all Fluxwegian military forces in Flux on 2 February 2024, one day before the Fluxwegian missile test and exercises are scheduled to begin, "to address and eliminate the clear and imminent threat posed by Flux to the territorial integrity and political independence of Grace". President Bartlett is proposing an overwhelming first strike of military force (largely air strikes with additional ground-launched missiles) sufficient to destroy or disable the majority of the Fluxwegian military vehicles deployed along the border regions with Grace and to kill or otherwise neutralize enough Fluxwegian soldiers to eliminate their capacity to invade Grace, while at the same time destroying all Fluxwegian stockpiles of Sabre missiles and related warheads while it is still possible to do so. President Bartlett has indicated that he believes that the current buildup of Fluxwegian forces "poses a clear threat to the continued existence of Grace as we know it, and that such an overwhelming attack is the only way to eliminate this imminent threat without posing unacceptable ongoing risks to the entire civilian population of Grace". Attacking before the Fluxwegian exercises begin is considered necessary to ensure the success of this operation; at this stage, Fluxwegian military forces will be concentrated and therefore much easier to target, and an early attack will prevent any actual military incursion into Gracian territory. The CIA Director and Gracian military commanders concur with this assessment, adding that "once an enemy attack begins, our forces may not be able to stop it and, even if they do, hundreds of thousands of our citizens and soldiers might die". They are particularly concerned that Flux will decide to launch a large-scale missile strike against major Gracian cities in the event that it is unable to obtain a fast military victory - the CIA Director believes that Commander Jongduro wants to seize Gracian territory without resort to these weapons, if possible, but that she will completely destroy its cities rather than lose a war. The CIA Director has indicated that Flux must not in any circumstances be informed of Gracian knowledge of the impending Fluxwegian attack as this would threaten the lives of key intelligence sources. Gracian military commanders also share this assessment, with the Chief of the Gracian Defence Forces further noting that "the element of surprise is absolutely crucial to the defence of our homeland - to show our hand before we strike could doom our cities to destruction". Gracian military commanders have indicated that, due to the location of the Fluxwegian war games and all of their other military assets, the proposed strike does not pose any threat to Fluxwegian civilians, either direct or incidental. This information should be considered reliable. All weapons and tactics used in the Gracian strikes will also comply fully with its obligations under the Law of Armed Conflict. The State of Grace and Flux are both Members of the United Nations. Grace will inform the Security Council of its military action concurrently with its launch. President Bartlett is concerned that any earlier notification might be leaked to Flux, thereby eliminating the key element of surprise and precipitating a Fluxwegian attack. Grace does not intend to request Security Council authority to act, as it does not feel that such authority is required. In any event, the President considers that such authorization will not be forthcoming, given the short timeline and the likely veto of any Chapter VII measures by the Peoples' Republic of China, a historical Fluxwegian ally. Just last year on a state visit to Flux, the Chinese President stated that "we will never, under any circumstances, authorize force to be used against our Fluxwegian brothers and sisters." Apart from the Charter of the United Nations, Grace and Flux are not Parties to any other treaty material to this issue. Their peace treaty expired after fifty years; however, both states publicly declared their permanent acceptance of their shared border in 2016. You are the Attorney-General of the United States of Grace. President Bartlett has asked for your advice concerning the legality of the proposed Gracian strike against Flux. He wants to make an informed decision and, as such, he expects your opinion to reflect an honest and unbiased assessment of the current state of international law. He has provided more detailed information concerning the structure of the required memorandum under separate cover. President Bartlett is not concerned about potential individual criminal liability for himself or anyone else, and therefore does not require your opinion on this matter. President Bartlett has indicated that this background material provides the necessary facts upon which your analysis should rest, and that it should be accepted as an accurate portrayal of the current situation. You should not make any assumptions with respect to information not provided. INTERNATIONAL LAW: USE OF FORCE Winter 2024 Legal Memorandum: Outline This assignment asks you to assess whether the legal doctrine of self-defence supports the use of armed force by the State of Grace against Flux in the specific circumstances described in the background materials. To answer this question, you are to write a formal legal memorandum, in accordance with the following instructions. The memorandum must conform to the general instructions for written assignments outlined in the INAF 5506 course syllabus. For the purposes of this assignment you should assume that the information provided in the background brief is a complete and accurate assessment of the current situation. If necessary, further information may be requested as outlined in the background materials. Please do not assume facts that have not been provided. This assignment does not require any research beyond INAF 5506 course readings up to and including those for 30 January 2024. Further research is in fact discouraged. The goal of the assignment is to help you to develop your skills of legal analysis and argumentation. Your research skills will be tested more directly in other assignments. Your memorandum must clearly state the intended recipient (i.e., the President of Grace), sender (i.e., you!), date and subject at the top of the first page. In addition, the following format is required for this assignment: 1) ISSUE (a few sentences at most): What is the legal issue in question? Try to narrow the issue as much as possible. This section might begin with: "You have requested my opinion concerning the legality of ...". 2) CONCLUSION (or SUMMARY or BLUF) (): How do you ultimately answer your legal issue? Simply put, to what conclusion does the application of the legal rule to the facts lead? You will present the information and arguments supporting your conclusion in the following sections. Here you need only summarize the argument in a neat statement that makes the conclusion explicit. The first sentence of this section should make your conclusion clear. 3) BACKGROUND: What are the material facts underpinning your analysis? That is, what specific situation are you assessing and, more precisely, what facts are necessary to inform your legal conclusions. Be careful not to go beyond objective facts to your subjective argument (i.e., don't argue your specific position here). 4) LEGAL RULE: What are the principles of international law applicable in this case? That is, what legal principles are material to answering the legal issue that you have defined above. Where are these principles found? For example, is there a conventional (treaty) basis to these principles or are they found in international custom, or both? In either case, why should they be considered legal principles? At this point you are only outlining the abstract legal principles relevant to the issue that you have defined. This is intended to be a neutral review of the current state of international law. If the state of the law is truly uncertain you may wish to discuss ways in which new legal norms may be developing and the implications of this uncertainty. Be careful not to misrepresent the current state of the law in an attempt to make your own position stronger. 5) APPLICATION: In this section you must apply the abstract legal principles described in the 'rule' section to the actual facts raised in the specific situation you are addressing (i.e. the proposed use of force by Grace). That is, how do the facts fit into the legal criteria that you have established? Think of the legal rule as an equation into which you must fit the fact 'variables' in order to reach a conclusion. More sophisticated arguments will also acknowledge and refute the strengths of other positions. NOTE: Sections 4 and 5 may be combined (as 'Analysis'), should this prove more effective and efficient for conveying relevant information and the related assessment. Due Date