Seminar talk with Dr. Shelly Aviv Yeini (Post Doctoral Fellow at the Minerva Center for the Rule of Law under Extreme Conditions):
“Frontier Incidents as Armed Attacks”.
Wednesday, December 11, 2019 between 14:15-15:45, Room 1013, Terrace building, University of Haifa.
Abstract:
The judgment of Nicaragua v. United States of America has been interpreted to distinguish between frontier incidents and grave forms of aggression that constitute an armed attack. The assertion that frontier incidents do not qualify as armed attacks has not been universally accepted. While some argue that frontier incidents should be reviewed under the scale and effects test to determine whether they constitute an armed attack, others claim that such application of the scale and effects test would broaden the scope of armed conflict and increase violence and global instability.
This research aims to suggest a compromise between existing approaches. Its starting point is that, while some frontier incidents are minor and negligent, others may very well constitute an armed attack. Moreover, frontier incidents can take different forms, many of which are not often considered frontier incidents, yet can nevertheless challenge the Nicaragua exclusion.
The article offers a preliminary test to separate “mere frontier incidents” from grave ones, which stems from the unique characteristics of frontier incidents. Incidents that satisfy the preliminary test would then be assessed under the scale and effects test. This approach may offer a midway between complete exclusion of frontier incidents from the scope of armed attack, and complete applicability of the scale and effects test. It suggests a well-considered, specifically-tailored assessment of frontier incidents that may balance states’ interest to define such aggressions as an armed attack, while maintaining world stability and preventing unnecessary escalation of violence.