International law

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 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 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 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).

Episode 27 – Samuel Moyn on the Humanizing of War

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In this episode I speak with Samuel Moyn, who is a Professor of Jurisprudence at Yale Law School and Professor of History at Yale University. Sam has written a number of books on issues at the intersection of history and international human rights, but we here discuss his most recent book, Humane: How the United States Abandoned Peace and Reinvented War. Taking off from an insight of Leo Tolstoy’s, the book provocatively explores how an increasing focus on the humanization of war may have made us more accepting of armed conflict, and thereby undermined the movement to constrain the resort to war. In our discussion we explore some of the historical accounts that form the premises of this argument, including the claim that IHL did little to make war more humane until after the Vietnam war, particularly in the history of Western conflicts with non-white peoples; how armed conflict become far more humanized in the so-called “global war on terror;” and how this increasing focus on humanizing war has resulted in a corresponding decline in efforts to constrain the resort to war. We dig into the nature and implications of this claimed inverse relationship, and what forces and actors he thinks help to explain the phenomenon, and end with the question of what might might be done, and by whom, to address the problem of this declining focus on preventing war – an urgent question in the circumstances.

Materials:

– Humane: How the United States Abandoned Peace and Reinvented War (Farrar, Straus and Giroux, 2021).

Reading Recommendations:

– Amanda Alexander, “A Short History of International Humanitarian Law,” 26 European Journal of International Law 109 (2015).

– Boyd van Dijk, Preparing for War: The Making of the Geneva Conventions (Oxford Univ. Press, 2022).

– Giovanni Mantilla, Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict (Cornell Univ. Press, 2020).