armed conflict

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 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 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).

Season 3: Episode 26 – Olivier Corten on The Law Against War

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In this first episode of Season 3 of the podcast, I speak with Olivier Corten, Professor of International Law at the Center for International Law, Free University of Brussels, in Belgium. Olivier specializes in both the international law on the use of force, and international law theory, and was the Director of the Center for International Law at Free University of Brussels until 2019. In our conversation we discuss the 2nd edition of his book The Law Against War, which was published in late 2021 (the first edition was published in 2010). We begin with his analysis of the differing methodological approaches – what he calls the restrictive and the expansive approach – to international law on the use of force. From there, our conversation moves on to explore the substantive content of the book, beginning with the threshold for what constitutes a use of force, and moving through the scope and operation of the doctrine of self-defense, including the proper understanding of the role played by the principle of necessity, the validity of any and all conceptions of anticipatory self-defense, the use of force by invitation, and whether and how the law on the use of force applies to actions against non-state actors, and to cyber operations. We end where we started, discussing the problem posed by the very different theoretical and methodological approaches to an understanding of the jus contra bellum, and how one might think about bridging the divide.

Materials:

– The Law Against War, 2nd ed. (Hart Publishing, 2021).

Recommended Reading:

– Paulina Starski, “Silence within the Process of Normative Change and the Evolution of the Prohibition on the Use of Force: Normative Volatility and Legislative Responsibility,” 4 Journal on the Use of Force and International Law 14 (2017).

– Victor Kattan, “Furthering the ‘War on Terrorism’ Through International Law: How the United States and the United Kingdom Resurrected the Bush Doctrine on Using Preventative Military Force to Combat Terrorism,” 5 Journal on the Use of Force and International Law 97 (2018).

– Agatha Verdebout, Rewriting Histories of the Use of Force: The Narrative of ‘Indifference,’ (Cambridge Univ. Press, 2021).

Episode 25 – Aslı Bâli on Economic Sanctions and the Laws of War

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In the last episode of Season 2, I speak with Aslı Bâli, Professor of Law at UCLA in the United States, and Co-Director of the Middle East Division of Human Rights Watch, among other things. She specializes in both international law as it relates to armed conflict and human rights, and on comparative constitutional law with a focus on the Middle East. We discuss the lawfulness of comprehensive autonomous economic sanctions, and the relationship they may have with the various regimes that govern the use of force and armed conflict. Economic sanctions are often viewed as a legitimate and effective alternative to the use of force in international relations. Yet comprehensive sanctions can and do cause the kind of humanitarian harm and economic disruption that in other circumstances could be unlawful under IHL, or constitute a use of force if caused by cyber operations or even naval blockade, and they are potentially in violation of human rights law. So aside from the ethical and strategic questions that they pose, economic sanctions raise legal issues, including issues at the intersection with the laws of war—which we explore in a fascinating conversation!

Materials:

– “Sanctions are Inhumane – Now , and Always,” The Boston Review, Mar. 26, 2020.

– Dapo Akande, Payam Akhavan, and Eirik Bjorge, “Economic Sanctions, International Law, and Crimes Against Humanity: Venezuela’s Referral to the International Criminal Court,” American Journal of International Law, Apr. 29, 2021.

Recommended Reading:

– Joy Gordon, Invisible War: The United States and the Iraq Sanctions (2010).

– Alex de Waal, Mass Starvation: The History and Future of Famine (2018).

– Nicholas Mulder and Boyd van Dijk, “Why Did Starvation Not Become the Paradigmatic War Crime in International Law?” in Ingo Venzke and Kevin Jon Heller eds., Contingency in International Law (2021).

– Tom Dannenbaum, “Encirclement, Deprivation, and Humanity: Revising the San Remo Manual Provisions on Blockade,” 97 International Law Studies 307 (2021).

Episode 24 – Judge Chile Eboe-Osuji on the ICC, the Concept of “Attack,” and More

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In this episode, I speak with Judge Chile Eboe-Osuji, Judge and President of the ICC until he stepped down earlier this year. He served as Judge on the ICC for almost ten years, and was President of the Court for three. Prior to that he was Legal Advisor to the UNHCR, and before that, a prosecutor at the International Criminal Tribunal for Rwanda. Orignally from Nigera, Judge Eboe-Osuji is a Canadian, and he practiced law in Toronto prior to his international law career. He is soon to take up a new position at the Lincoln Alexander School of Law at Ryerson University in Toronto. In our conversation Judge Eboe-Osuji reflects on his role in the development of the ICC, and some of the criticisms of the Court, before turning to a more detailed discussion of the meaning of the term “directing attacks” in the Rome Statute, through the lens of the Ntaganda case. This leads to a discussion of the relationship between so-called Hague Law and Geneva Law in IHL, and between war crimes and crimes against humanity within the Rome Statute, all within the context of the object and purpose of IHL, and the need for intelligibility and accessibility as a fundamental component of the rule of law – fascinating discussion!

Materials:

– The Prosecutor v. Bosco Ntaganda, Appeal Chamber Decision, Mar. 30, 2021.

– The Prosecutor v. Bosco Ntaganda, Trial Chamber Decision, Jul 28, 2019.

– Abhimanyu George Jain, “The Ntaganda Appeal Judgement and the Meaning of “Attack” in the Conduct of Hostilities War Crimes,” EJILTalk!, Apr. 2, 2021.

– Ronald Acala and Sasha Radin, “Symposium Intro: The ICC Considers the Definition of ‘Attack.'” Articles of War, Oct. 27, 2020.

Reading Recommendations:

– Stanley Milgram, Obedience to Authority: An Experimental View (1969).

– Hannah Arendt, Eichmann in Jerusalem: The Banality of Evil (1963).

– Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (2017).

Episode 23 – The Gaza Conflict

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In this episode I discuss the legal issues raised in the Gaza conflict of May 2021, with Professors Janina Dill of the University of Oxford, Adil Haque of Rutgers University Law School, and Aurel Sari of Exeter University Law School. The discussion begins by placing the legal issues in context, and addressing the question of whether the narrow focus on technical legal aspects may serve to obscure the broader ethical issues, or even facilitate and legitimate injustice. The analysis turns to the the questions regarding the legal authority or justification for Israel’s use of force, and whether its use of force complies with the limiting principles of whichever legal regime may govern. Turning to the conduct of hostilities, and using the attack on the Al Jalaa Tower (which housed Al Jazeera and AP) as a case study, we discuss the extent to which IDF actions complied with the principles of distinction, proportionality, and precautions in attack, debate the legal effect of warnings, and what burden there may be on belligerents to disclose evidence in support of their claims of lawfulness. A deep and sophisticated analysis of the issues.

Materials:

– Adil Haque, “The IDF’s Unlawful Attack on Al Jalaa Tower,” Just Security, May 27, 2021.

– Aurel Sari, “Israeli Attacks on Gaza’s Tower Blocks,” Articles of War, May 17, 2021.

Recommended Reading:

– Ayel Gross, “The 2021 Gaza War and the Limits of International Humanitarian Law,” Just Security, Jun. 1, 2021.

– Eliav Lieblich, “Dispatch from Israel on Human Shields: What I Should’ve Said to a Dad on the Playground,” Just Security, May 18, 2021.

– Noam Lubell and Amichai Cohen, “Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts,” 96 International Law Studies 160 (2020).

Episode 22 – Srinivas Burra on India’s Apparent Shift on Self-Defense

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In this episode, I speak with Srinivas Burra, professor of law at South Asian University, Faculty of Legal Studies, in New Delhi, India. Srinivas has written extensively on both jus ad bellum and international humanitarian law, often with a focus on India’s practice and position in relation to these legal regimes. We discuss first how India’s position regarding the doctrine of self-defense, as indicated in statements in the recent Arria-formula meeting of the U.N. Security Council, appears to have shifted quite significantly as compared to the posture it adopted in the context of strikes against non-state actors within Pakistan in 2016 and 2019. Srinivas interprets the recent statements to suggest that India accepts both anticipatory self-defense and self-defense against non-state actors, but surprisingly, views its rejection of the “unwilling or unable” doctrine as taking a more expansive and aggressive posture than that doctrine allows when it comes to defending against non-state actors in non-consenting states. Turning to international humanitarian law, we discuss why India has continued to hold out against ratifying the Additional Protocols to the Geneva Conventions. Another fascinating discussion!

Materials:

– “India’s Decisive Turn on the Right to Self-Defence,” Opinio Juris, Mar. 22, 2021.

– “Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice,” 24 Asian Yearbook of International Law (2018).

– “India’s Strange Position on the Additional Protocols of 1977,” EJILTalk!, Feb. 15, 2019.

Recommended Reading:

– B. S. Chimni, “The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective,” 31 European Journal of International Law, volume 1211 (2020).

– Ntina Tzouvala, “TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures,” 109 American Journal of International Law: Unbound  266 (2015).

– Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’, in Anne Orford, ed., International Law and its Others, (2006).

Episode 21 – Yasuyuki Yoshida on Japanese Perspectives on the Jus ad Bellum Regime

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In this episode I speak with Yasuyuki Yoshida, Professor of International Law at Takaoka University in Toyama Japan, and former Captain(N) in the Japanese Maritime Self-Defence Force. We discuss Japan’s posture on various aspects of the jus ad bellum regime, and whether or how its position may have changed as a result of the “reinterpretation” of Article 9 of the Constitution of Japan. Article 9 famously renounces the threat or use of force, and has long been understood to prohibit any collective self-defense or use of force authorized by the UN Security Council, but in 2014 the government purported to “reinterpret” the provision to relax its constraints. We discuss how the new policy relates to the jus ad bellum, and what Japan’s position is on a number of the more controversial elements of the doctrine of self-defense. The discussion includes surprising insights on how Japan would view a Chinese incursion on the Senkaku Islands, whether Japan would help defend Taiwan, and whether the US could invoke collective self-defense of Japan for preemptive strikes on North Korea. Another fascinating conversation!

Materials:

– Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People, July 1, 2014.

Reading Recommendation:

– Sheila Smith, Japan Rearmed: The Politics of Military Power (2019).

Episode 20 – Rebecca Ingber on Legally Sliding into War

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In this episode I speak with Rebecca Ingber, Professor of Law at Yeshiva University’s Cardozo School of Law, and formerly a lawyer in the Office of Legal Advisor in the U.S. Department of State. We discuss a recent essay in which Rebecca examines how international and domestic law operate together to facilitate the incremental moves by which the U.S. initiates, expands, and extends armed conflicts. The process involves legal justifications and rationales for each step towards war, with legal interpretations that, while made in good faith, are often strained and even beyond the pale. What is more, Congress and the courts tend to look to the international law principles as limitations on executive branch conduct, but then there is little check on how the executive branch lawyers interpret and expands such principles — and all of this focus on legal justification displaces a necessary and deeper policy analysis of the reasons for engaging in armed conflict. In exploring these issues, we also talk about whether legal scholars are fulfilling their role of keeping the government honest in its interpretation of international law, where exactly within the government such decisions get made, and why and how different areas of law get conflated and confused in the justifications for war!

Materials:

– “Legally Sliding Into War,” Just Security, Mar. 15, 2021.

– “International Law as Executive Power,” 57 Harvard Int’l Law J. (2016).

Recommended Reading:

– David Luban, “Complicity and Lesser Evils: A Tale of Two Lawyers,” Georgetown J. Legal Ethics, (forthcoming, 2021).

– Monica Hakimi, “The Jus ad Bellum‘s Regulatory Form,” 112 American J. Int’l L. 151 (2018) [See Episode 6!].

– E. M. Forester, The Machine Stops (1909).