Episode 37 – Martin and Hafetz on “Eye in the Sky”

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This episode is a joint production and cross-posting with the Law on Film Podcast, produced and hosted by Jonathan Hafetz, a professor of law at Seton Hall Law School, and expert in national security law, international criminal law and human rights, as well as constitutional law. We discuss the film “Eye in the Sky,” a 2015 film likely known to most JIB/JAB listeners,  about a joint British and American drone strike against al-Shabaab terrorists in Kenya, and which intelligently and engagingly explores the legal, ethical, philosophical, political, and strategic issues raised by the operation. We not only examine the film’s treatment of the legal issues implicated, including whether IHL should apply at all, and how the principles of distinction, necessity, proportionality, and precautions in attack are illustrated in the film, but we also explore the relationship between these principles and some of the ethical and strategic aspects of the decision-making in the film. We round out the conversation with a discussion of some other engaging films that similarly explore law in the context of armed conflict. I very much enjoyed the conversation!

Materials:

– Craig Martin, A Means-Methods Paradox and the Legality of Drone Strikes in Armed Conflict, 19:2 Int’l J. Human Rights 142 (2015).

– House of Lords and House of Commons Joint Committee on Human Rights, The Government’s Policy on the Use of Drones for Targeted Killing, Second Report, 2015-16 (2016).

– Chairman of the Joint Chiefs of Staff Instruction, No-Strike and Collateral Damage Estimation Methodology, Feb. 13, 2009.

Movie Recommendations:

– Taxi to the Darkside (2007)

– Breaker Morant (1980)

– Paths of Glory (1957)

– A War (2015)

Episode 36 – Hakimi, Haque, and Milanovic on the Right of Self-Defense in Gaza

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In this episode I speak with Monica Hakimi of Columbia Law School, Adil Haque of Rutgers Law School, and Marko Milanovic of University Reading School of Law, on the question of whether Israel has a right of self-defense under Article 51 of the U.N. Charter in response to the Hamas attacks of October 7. This question has been the subject of some confusion in both the political and legal discourse, and raises a host of complicated issues regarding the scope of the prohibition on the use of force under Article 2(4) of the U.N. Charter and its relationship with the right of self-defense under Article 51, whether the right of self-defense depends upon Gaza being part of an established state of Palestine, whether self-defense is available in response to attacks by non-state actors in any event, whether the prohibition on the use of force may extent to protect non-state entities with a right of self-determination, what the scope of legitimate resistance by such entities may be, and how best to interpret the scope and operation of the principle of proportionality under the doctrine of self-defense if it applies here. We explore all of these questions, and discuss how the positions and actions taken by states may have in relation to these issues may have significant implications for the development of the jus ad bellum regime. An important and fascinating discussion.

Materials:

– Marko Milanovic, “Does Israel Have the Right to Defend Itself?” EJILTalk!, Nov. 14, 2023.

– Adil Haque, “Enough: Self-Defense and Proportionality in the Israel-Hamas Conflict,” Just Security, Nov. 6, 2023.

– Monica Hakimi, “Defensive Force against Non-State Actors: The State of Play.” 91 International Legal Studies 1 (2015).

(In addition, the discussion refers to recent blog posts, which can be accessed at the following links, by Michael Schmitt, Mary-Ellen O’Connell, Nicholas Tsagourisas, and Raphael Van Steenbergh).

Reading Recommendations:

– Ezra Klein, “The Ezra Klein Show,” The New York Times – the series on the Israel-Hamas Conflict (there have been 10 episodes thus far!) (Monica Hakimi).

– David Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus ad Bellum,” 24 European Journal of International Law 235 (2013) (Marko Milanovic).

– Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967-2020,” 31 European Journal of International Law 1055 (2020) (Adil Haque).

– Colleen Murphy, “Israel, Hamas, and the Narratives of Atrocity,” The Daily Nous, October 25, 2023. (Adil Haque)

Episode 35 – Tom Dannenbaum on Sieges, the War Crime of Starvation, and Gaza

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In this episode Tom Dannenbaum, a professor of international law and Co-Director of the International Law and Governance Center at The Fletcher School of Law & Diplomacy at Tufts University, discusses his work on the war crime of intentional starvation of civilians as a method of warfare. We begin with an analysis of the proper interpretation and operation of the prohibition on starvation as a method of warfare in International Humanitarian Law, as provided for in the Additional Protocols to the Geneva Conventions and customary international law, and how this prohibition applies in the context of an encirclement siege, and how it relates to military necessity and the principle of distinction. We then turn to his contribution to the discourse on the best interpretation of the criminal prohibition in the Rome Statute. This involves a discussion of how best to understand the term “method of warfare,” what precisely constitutes the actus res of the crime, what is the nature of the intent that is required, and what the underlying wrong is said to be – and Tom’s claim that the incremental and drawn-out process of starvation and deprivation, far from being a mitigating factor, is precisely what makes the crime distinct, and informs how we should think about the actions that are prohibited. Finally, we turn to discuss the issue of the current siege of Gaza, informed by this theoretical analysis of how the relevant IHL and ICL prohibitions operate.

Materials:

– “Siege Starvation: A War Crime of Societal Torture,” 22 Chicago Journal of International Law (2022).

– “Criminalizing Starvation in an Age of Mass Deprivation in War: Intent, Method, Form, and Consequence,” 55 Vanderbilt Journal of International Law 681 (2022).

– “The Siege of Gaza and the Starvation War Crime,” Just Security, Oct. 11, 2023.

Reading Recommendations:

– Naz Modirzadeh, “Cut These Words: Passion and International Law of War Scholarship,” 61 Harvard International Law Journal 1 (2020).

– Bridget Conley, Alex de Waal, Catriona Murcdoch, and Wayne Jordash, eds., Accountability for Mass Starvation: Testing the Limits of the Law (2022).

– Carsten Stahn, Justice as Message (2020).

 

Episode 34 – Chris O’Meara on Necessity and Proportionality

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In this episode I speak Chris O’Meara, Lecturer at Exeter University Law School, about his new book, Necessity and Proportionality and the Right of Self-Defence in International Law. Chris describes his novel taxonomy for dividing the principle of necessity between general and specific necessity, and his blending the quantitative and teleological approaches to the principle of proportionality, and goes on to explain how the relationship among necessity, proportionality, and imminence should be properly understood. We delve into some of the more potentially controversial claims he makes, such as: on how he thinks necessity operates as a limiting principle; why the gravity threshold for armed attack should be lowered; whether the principles of self-defence are modified in responses to non-state actors; why the assertions and actions of a minority of powerful states, particularly in relation to clearly unlawful uses of force, and the corresponding silence of other states, should be considered so heavily in thinking about custom – and so much more! A fascinating conversation.

Materials:

– Necessity and Proportionality and the Right of Self-Defence in International Law (2021).

– “The Relationship Between National, Unit and Personal Self-Defence in International Law: Bridging the Disconnect,” 4 Journal on the Use of Force and International Law 273 (2017).

– “Reconceptualizing the Right of Self-Defence Against Imminent Armed Attacks,” 9 Journal on the Use of Force and International Law 278 (2022).

Recommended Reading:

– Craig Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (2018);

– Tom Ruys et al., The Use of Force in International Law: A Case-Based Approach (2018);

– Jay Kristoff, Nevernight (2016).

Episode 33 – René Provost on Rebel Courts

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In this episode I speak with René Provost, professor of law at McGill University Faculty of Law in Montreal. We talk about his recent and widely acclaimed book, Rebel Courts: The Administration of Justice by Armed Insurgents. We discuss the methodology he employed in researching this deep and rich ethnography of rebel courts, in conflicts ranging from Afghanistan, Iraq, and Syria, to Sri Lanka, Colombia, and the DRC, and some of the significant challenges and risks that such research entailed. From there we dive into how he assesses the legality and validity of the administration of justice by armed groups, and how the very idea of rebel courts challenges many state-centered conceptions of law and justice and the rule of law, which in turn takes us into an exploration of legal pluralism and meaning of the rule of law itself. We also delve into a number interpretive issues surrounding the meaning of “regularly constituted courts” in IHL, and the paradox of states requiring armed groups to comply with and implement IHL while rejecting their attempts to administer justice in the process. All in all, it is a fascinating discussion that ranges from legal anthropology and legal theory to certain technical aspects of IHL and human rights law.

Materials:

– Rebel Courts: The Administration of Justice by Armed Insurgents.

Recommended Reading:

– Stuart Elden, The Birth of Territory (2013);

– Martti Koskeneimmi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001);

– Sarah M.H. Nouwen, Complimentarity in the Line of Fire: The Catalyzing Effect of the International Criminal Court in Uganda and Sudan (2013).

Episode 32 – Boyd van Dijk on the Making of the Geneva Conventions

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In this episode I speak with Boyd van Dijk, currently a McKenzie Fellow at the University of Melbourne, and formerly a fellow at the Lauterpacht Centre for International Law and the University of Cambridge. We talk about his new book, Preparing for War: The Making of the Geneva Conventions, which is a detailed history of the years-long process of negotiations that resulted in the treaties of 1949. We discuss some of the myths surrounding the history of the conventions, as well as the tensions and conflicts not just between parties to the negotiations, but also within the delegations and among different departments of each of the parties, caused by conflicting interests, values, and paradoxes within their positions. We dig into the weeds of some of the different aspects of the negotiations, and discuss why this history should matter to how we think about and understand the operation of the conventions today. A fascinating conversation that only scratches the surface of his book!

Materials:

– Preparing for War: The Making of the Geneva Conventions (2022).

Reading Recommendations:

– Giovanni Mantilla, Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict (2020);

– Nicholas Mulder, The Economic Weapon: The Rise of Sanctions as a Weapon of Modern War (2022);

– Jessica Whyte, “The ‘Dangerous Concept of the Just War’: Decolonization, Wars of National Liberation, and the Additional Protocols of the Geneva Conventions,” Humanity, Jan. 2019.

 

Episode 31 – Leila Sadat on Crimes Against Humanity

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A conversation with Leila Sadat, a professor of law at Washington University School of Law in St. Louis, the United States, and Special Advisor on Crimes Against Humanity to the Chief Prosecutor of the International Criminal Court in The Hague. We discuss Leila’s decade long work as part of effort to establish an international convention for the prevention and punishment of crimes against humanity, and why such a convention is important, notwithstanding that crimes against humanity are addressed in the Rome Statute. This leads us into an examination of the role of the ICC in prosecuting crimes against humanity, the relationship between crimes against humanity and genocide, the ILC’s work on developing a draft convention, the current status of the effort to establish the convention, and the significance of the U.N. Sixth Committee to the process. A wide ranging and fascinating discussion!

Materials:

– “Little Progress in the Sixth Committee on Crimes Against Humanity,” 54 Case Western Reserve Journal of  International Law 89  (2022);

– “Towards a New Treaty on Crimes Against Humanity: Next Steps,” Just Security, Sept. 13, 2021;

– Forging a Convention on Crimes Against Humanity (Leila Sadat, ed., 2013);

– ILC Draft Articles on the Prevention and Punishment of Crimes Against Humanity (2019).

Reading Recommendations:

– Oona Hathaway and Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017);

– Philippe Sands, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (2016);

– Carol Anderson, The Second: Race and Guns in a Fatally Unequal America (2021).

Episode 30 – Chile Eboe-Osuji on the Ukraine War and Implications for IHL, ICC, and the Crime of Aggression

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In this episode I speak with Chile Eboe-Osuji, former President of the ICC and Distinguished International Jurist at the Lincoln Alexander School of Law, Toronto Metropolitan University in Canada. We discuss why the ICC cannot prosecute crime of aggression in Ukraine and what some of the better alternatives that are currently being debated, as well as the jurisdiction and immunity issues that might arise for some forms of tribunal established for that purpose. We also discuss how other war crimes should be prosecuted, how to think about the claims of genocide. More broadly, we discuss how the war might provide an impetus for improving the international order, beginning with the establishment of a right to peace, amending the Rome Statute to expand the jurisdiction of the Court for the crime of aggression, restoring the jus ad bellum regime, and generally strengthening international criminal justice. A wide ranging and fascinating discussion!

Materials:

– “A Pheonix Moment? International Law After Ukraine,” David B. Goodman Lecture, University of Toronto Faculty of Law, April 2022.

– “Immunity Before International Courts: How There Never Was,” lecture, Western University, Nov. 2021.

Reading Recommendations:

– Documents and records of the Paris Peace Conference, 1919 (link is to only one online source to archival material).

– Documents and records of the London Conference, 1945. (link is to only one online source to archival material).

Episode 29 – David Sloss on Defending Democracies Against Information Warfare

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In this episode I speak with David Sloss, a professor of law at Santa Clara University School of Law, about his new book Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare. David argues that autocracies such as China and Russia are exploiting social media to engage in “warfare by other means” to undermine democracies around the world, and that there are strategic and geopolitical implications to allowing autocracies to conduct this kind of information warfare. We discuss how this form of information warfare calls for different law and policy responses than cyber operations, or other forms of interference in the electoral processes or domestic politics of nations, and why in his view the best response is a coordinated transnational regulatory system agreed to by like-minded democracies, which would include the banning of Russian and Chinese state agents from social media platforms. We explore several of the likely objections to his proposal, including its implicit rejection of broader and more universal international law solutions, whether it distracts from several larger threats to democracy posed by social media platforms, the risk of securitizing an essentially non-military problem, and some of the more technical challenges to its implementation. We only scratch the surface of everything the book has to offer, but it provides a lot of food for thought!

Materials:

– Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (2022).

Reading Recommendations:

– Yochai Benkler et al., Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (2018);

– Laura Rosenberger, “Making Cyberspace Safe for Democracies,” Foreign Affairs, May/June, 2020.

– Aleksi Knuutila et al., “Global Fears of Disinformation: Perceived Internet and Social Media Harms in 142 Countries,” Oxford Internet Institute (2020).

– The Varieties of Democracy Institute (V-Dem).

Episode 28 – The War in Ukraine: Jus ad Bellum Implications

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In this special episode, I discuss aspects of the Russian invasion of Ukraine with Professors Eliav Lieblich of Tel Aviv University Faculty of Law, Marko Milanovic of the University of Nottingham School of Law, and Ingrid Wuerth of Vanderbilt University School of Law. The focus of our discussion is how we should be thinking about what this war means for the jus ad bellum regime and the collective security system. While the invasion is clearly an unlawful and egregious act of aggression, have unlawful uses of force by Western states served to weaken the system in a way that is in any way relevant to the current conflict? Has the focus on humanitarian issues, and human rights law more generally, somehow similarly weakened the system? Should this war be understood as a failure of the collective security system? Is there a risk that the wrong lessons may be drawn from the conflict, particularly in the area of nuclear non-proliferation? And, perhaps most importantly, how should we begin to think about restoring or even reforming both the jus ad bellum regime and the collective security system more broadly? A fascinating discussion about hugely important issues.

Materials:

– Marko Milanovic, “What is Russia’s Legal Justification for Using Force in Ukraine,” EJILTalk!, Feb. 24, 2022.

– Ingrid Wuerth, “International Law and the Russian Invasion of Ukraine,” Lawfare, Feb. 25, 2022.

– Eliav Lieblich, “Not Far Enough: The European Court of Human Rights Interim Measures on Ukraine,” Just Security, Mar. 7, 2022.

– Monica Hakimi, Twitter thread exploring legal distinctions between Western violations of Art. 2(4) from the current Russian act of aggression.

Recommended Reading:

– Nicholas Mulder, The Economic Weapon: The Rise of Sanctions as a Tool of War (2022).

– International law blogs: EJILTalk!, Opinio Juris, Just Security, Lawfare, Armed Groups and International Law.

– Ruys, Tom, et al., The Use of Force in International Law: A Case-Based Approach (2018).