Episode 40 – Harold Hongju Koh on the National Security Constitution for the 21st Century, International Law, and the Trump Administration

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In this episode I speak with Harold Hongju Koh of Yale Law School, former legal counsel to the Department of State among several other positions in government, as well as former Dean of Yale Law School. We discuss his new book, The National Security Constitution for the 21st Century, which builds on his famous earlier book that will be familiar to most listeners. The new book similarly examines the structural and systemic reasons for the dangerously increased strength of the executive branch of government in the U.S., but analyzes how the process has simply accelerated in the post Cold-War and post 9/11 eras, and it explores the implications for American use of force, foreign relations, and international law. We discuss not only the evolution and implications of these systemic failures, but also his recommendations for reform, and the role of lawyers and legal scholars in responding to the problem.  We even revisit his own role in government in the context of these issues, and discuss whether he has a different perspective on any of the positions he once took. Finally, we discuss how a second Trump administration makes the prospect for reform more difficult, and the outlook for international law more fraught – but ultimately we end on an optimistic and even inspiring note, as Harold explains how and why lawyers and legal scholars must answer the call to defend the rule of law.

Materials:

– The National Security Constitution for the 21st Century (2024).

– The Trump Administration and International Law (2019).

– Just Security: Symposium on Harold Hongju Koh’s ‘The National Security Constitution for the 21st Century,‘ Oct. 25, 2024.

Reading Recommendations:

– Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (2016).

– David Sanger, New Cold Wars: China’s Rise, Russia’s Invasion, and America’s Struggle to Defend the West, (2024).

– Nicolas Kristof, Chasing Hope: A Reporter’s Life (2024).

– Richard Kruger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (2004).

Episode 39 – Dill & Haque on IHL and the IDF Conduct of Hostilities in Gaza

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In this episode Janina Dill of the University of Oxford and Adil Haque of Rutgers Law School return to the podcast to address the question of whether it is possible now, while hostilities are still ongoing, to assess whether some aspects of the IDF’s conduct of hostilities may be in violation of IHL. The question is germane because many argue that one cannot assess such violations until all of the evidence is available and has been analyzed, and we discuss why this may not be so. And the focus on the IDF, without delving into the violations of Hamas and Islamic Jihad, is justified because there is really no debate over the violations and war crimes committed by either of these – but there remains quite robust debate over whether the IDF is acting in compliance with IHL, and the issue is highly relevant now for countries that are supplying Israel with weapons. In the discussion we begin with explanations of the core principles of IHL, namely distinction, proportionality, and precautions in attack, as well as the treaty provisions that codify them, and how these are subject to interpretation. We also explore how the concept of intent, as well as the standards of evidence, should be understood differently depending on whether one is assessing collective violations of IHL or trying to prosecute individuals for war crimes, and whether one is considering the operation of law as an ex ante modifier of behavior, or as ex post mechanism for imposing accountability. We then dive into a discussion of some of the specific aspects of IDF conduct of hostilities, with a focus on strikes on civilian targets, and the use of indiscriminate weapons (or use of inappropriate weapons causing indiscriminate harm) in civilian areas, as well as how one should best understand the IDF’s use of warnings, the use of AI in targeting decisions, and the claims that Hamas is employing human shields. There is much to unpack, and there is much that we could not get to, but it is fascinating if sobering analysis.

Materials:

– Tom Dannenbaum and Janina Dill, “International Law in Gaza: Belligerent Intent and Provisional Measures,” American Journal of International Law, (forthcoming, 2024)(link to SSRN version).

– United Nations Human Rights Council, Human Rights Situation in the Occupied Palestinian Territory, Including East Jerusalem, and the Obligation to Ensure Accountability and Justice – Report of the High Commissioner for Human Rights, Feb. 23, 2024, U.N. Doc.No. A/HRC/55/28.

– United Nations Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, Including East Jerusalem, and Israel, May 27, 2024, U.N. Doc.No. A/HRC/56/26.

– Human Rights Watch, Gaza: Israelis Attacking Known Aid Worker Locations: End Unlawful Attack, Ensure Accountability, May 14, 2024.

– Amnesty International, Israel/OPT: Israeli Air Strikes that Killed 44 Civilians Further Evidence of War Crimes – New Investigation, May 27, 2024.

– Yuval Abraham, “‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza,” +972 Magazine, Apr. 3, 2024.

– “Israel Defence Forces’ Response to Claims About Use of ‘Lavender’ AI Database in Gaza,” The Guardian, Apr. 3, 2024.

– Israel Ministry of Foreign Affairs, Hamas-Israel Conflict 2023: Key Legal Aspects, Nov. 2, 2023.

– John Ramming Chappell, “Key Takeaways from Biden Administration Report on Israeli Use of US Weapons,” Just Security, May 11, 2024.

Reading Recommendations:

– Yousuf Syed Khan, “The Directive to Evacuate Northern Gaza: Advance Warning or Force Displacement?,” Just Security, Oct. 19, 2023.

– Eliav Lieblich, “On Civilians’ Return to North Gaza: What International Humanitarian Law Requires,” Just Security, Feb. 12, 2024.

– Brianna Rosen, “Unhuman Killings: AI and Civilian Harm in Gaza,” Just Security, Dec. 15, 2023.

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

– Mark Schack, “In Defence of Preliminary Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp,” EJILTalk!, Nov. 8, 2023.

– Janina Dill, “Our Shared Moral Horror,” EJILTalk!, Oct. 13, 2023.

Episode 38 – Brunk and Hakimi on the Prohibition Against Annexations

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A discussion with Ingrid Weurth Brunk of Vanderbilt University Law School and Monica Hakimi of Columbia University Law School, on their recent law review article on the prohibition against annexation. They are argue that the prohibition against the annexation of territory is related to and has emerged from three other fundamental principles of international law – namely the prohibition against the use of force, the right to self-determination, and the principle of territorial sovereignty – but that it is nonetheless distinct from each of these, and that this distinction is important. The significance of the principle has been obscured and it is too often conflated with the prohibition on the use of force, in ways that have important theoretical and practical implications for the jus ad bellum. We discuss all of this, and the ways in which they argue that the principle is under threat, and possibly in the process of being eroded, with significant implications for not only jus ad bellum but international law and the inter-state system itself. A fascinating discussion about a really important piece of scholarship.

Materials:

– “The Prohibition of Annexations and the Foundations of Modern International Law,” American Journal of International Law (forthcoming, 2024).

Reading Recommendations:

– Timothy Waters, Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (2020).

– Naz Modirzadeh, “‘Let Us All Agree to Die a Little’: TWAIL’s Unfilfilled Promise,  65 Harvard International Law Journal 79 (2023).

– Juan Pablo Scarfi, “Latin America and the Idea of Peace,” The Oxford Handbook of Peace History (Charles Howlett, ed., 2022).

– Natasha Wheatley, The Life and Death of States: Central Europe, and the Transformation of Modern Sovereignty (2023).

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).