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

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

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).

Episode 19 – Sarah Holewinski on the Mitigation of Harm to Civilians in Armed Conflict

In this episode I speak with Sarah Holewinski, the Washington Director at Human Rights Watch, and formerly the Director of CIVIC (Civilians in Conflict). In between those two roles she served under then U.S. Ambassador to the United Nations, Samantha Power, and as special advisor on human rights in the Chairman’s Office of the Joint Staff in the Department of Defense. We begin by discussing an essay Sarah published in Foreign Affairs in 2013, in which she argued that the U.S. could do much more to mitigate harm to civilians in the armed conflicts in Afghanistan and Iraq, and that it had ethical and strategically self-interested reasons for doing so. She revisited the issue in a very recent blog post in Just Security, in which she argued that little has changed. Drawing on her experience in the Pentagon, we explore how and why the U.S. has failed to establish either formal policy or leadership positions within DoD to ensure greater protection for civilians; as well as why there is a tendency in the military to deny any and all claims of civilian harm, and a general failure to adequately investigate such claims or accept outside evidence in support of them. Finally, we discuss a simulation that she designed which revealed a rather disturbing tendency on the part of government officials to take positions on issues that they think are expected of their role, rather than positions that they personally think are right.

Materials:

– “The Progress Not Made on Protecting Civilians,” Just Security, Feb. 2, 2021.

– “Do Less Harm,” Foreign Affairs, Jan./Feb. 2013.

Reading Recommendations:

– Hugo Slim, Killing Civilians: Method, Madness, and Morality in War (2010).

– Jessica Mathews, “Present at the Re-Creation? American Foreign Policy Must be Remade, Not Restored,” Foreign Affairs, Mar./Apr., 2021.

– The DSR Network, Deep State Radio – Podcast.

Episode 17 – Nessa Interviews Martin on Climate Change and the Jus ad Bellum Regime

In this episode, I relinquish the hosting to  Jasmin Johrun Nessa of Liverpool University Law School, and she interviews me on my recent work on how the climate change crisis may implicate the jus ad bellum regime. Jasmin is finishing up her doctorate on the doctrine of self-defense in jus ad bellum, and teaching international law among other things, at Liverpool Law School. She is also a co-general editor of the Journal on the Use of Force and International Law’s “Digest of State Practice.” We discuss my recent article on the climate change crisis and the jus ad bellum regime, in which I argue that as the climate change crisis deepens, and not only the consequences but the causes of climate change are viewed as threats to both national security and international peace and security, there will be pressure to relax the jus ad bellum regime to allow for the threat or use of force against “climate rogue states.” This will include a relaxation of the conditions for permissible self-defense, as we have seen in response to other novel threats, and pressure for a new exception to the prohibition on the use of force, along the lines of humanitarian intervention. I suggest that these arguments will be persuasive but dangerous, not only increasing the likelihood and incidence of war, but also being counterproductive to the climate change crisis effort itself — and so we must begin to discuss the issues now, and contemplate how to resist such developments, before the pressure mounts.

Materials:

– “Atmospheric Intervention: The Climate Change Crisis and the Jus ad Bellum Regime,” 45 Columbia Journal of Environmental Law 331 (2020).

Recommended Reading:

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

– John Fabian Witt, Lincoln’s Code: The Laws of War in American History (2012).

– Ray Moore and Donald Robinson, Partners for Democracy: Crafting the New Japanese State Under MacArthur (2002).

Episode 16 – Terry Gill on the Use of Force Against Non-State Actors

In this episode, I speak with Terry Gill, the Professor of Military Law at the University of Amsterdam, Center for International Law, and the Netherlands Defence Academy, and also the Director of the Netherlands Research Forum on the Law of Armed Conflict and Military Operations (LACMO). We discuss his recent article (co-authored with Kinga Tibori-Szabó) on the use of force against non-state actors (NSAs) within the territory of states that that are not substantially involved with, or exercising significant control over, the NSA, but which also do not consent to the use of force against the NSA within their territory – a familiar but still hot subject of ongoing debate. Terry explains why a strict understanding of the principle of necessity should be at the center of the analysis of these issues, and thus offers some perspectives on the so-called unwilling or unable doctrine that are quite different from others who support the right to use force against NSAs. We also revisit his much earlier work on the Nicaragua v. USA judgment of the ICJ, and how its formulation of attribution should be understood in this context.

Materials:

“Twelve Key Questions on Self-Defense Against Non-State Actors,” 95 International Law Studies 468 (2019) (with Kinga Tibori-Szabó).

Reading Recommendations:

– Kinga Tibori-Szabó, Anticipatory Action in Self-Defence (2011).

– Sir Humphrey M. Waldock, “The Regulation of the Use of Force by Individual States in International Law,” 81 Hague Academy of International Law Lectures (1962).

– Jack Vance, Suldrun’s Garden: Lyonesse Trilogy Vol. 1 (1982).

Season 2: Episode 15 – Michael Schmitt on Cyber Ops and the Laws of War

In this episode, the first of “Season 2”, I speak with Michael Schmitt, who is, among other things, Professor of International Law at the University of Reading, Francis Lieber Distinguished Scholar at the United States Military Academy at West Point, and Charles H. Stockton Distinguished Scholar at the US Naval War College.  He is also the Director of the International Group of Experts responsible for the Tallinn Manual 2.0 On the International Law Applicable to Cyber Operations. We discuss the development of the Tallinn Manual, the reasons for a 3.0 that is currently underway, and the implications and significance of recent state declarations and statements on their understanding of how the jus ad bellum and IHL regimes apply to cyber operations. We also grapple with some of the difficult issues that arise in trying to apply these legal regimes to cyber ops, and, more importantly, how efforts to do so may threaten the integrity of the legal regimes themselves. Both a wonderful introduction for the uninitiated to how the laws of war apply to cyber ops, and a fascinating discussion of some of the more knotty questions for the experts.

Materials:

Tallinn Manual 2.0 On the International Law Applicable to Cyber Operations (2017).

“Israel’s Cautious Perspective on International Law in Cyberspace: Part II (jus ad bellum and jus in bello),” EJILTalk!, Dec. 17, 2020.

“France Speaks Out on IHL and Cyber Operations: (Parts I & II),” EJILTalk!, Oct. 1, 2019.

Reading Recommendations:

– Israel Ministry of Justice, “Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law on Cyber Operations,” 97 International Law Studies (2021).

– Ministère des Armées, Republique Français, International Law Applied to Operations in Cyberspace, Oct. 2019.

– Ministry of Foreign Affairs, Government of the Netherlands, Letter to the Parliament on the International Legal Order in Cyberspace (with Annexes), Jul. 5 , 2019.

Episode 14 – Federica Paddeu on Consent as a Justification for the Use of Force

In this episode I speak with with Federica Paddeu, Professor and Derek Bowett Fellow in Law at Queen’s College, Faculty of Law, Cambridge University in England. We discuss her recent work on how best to understand the operation of consent as a justification for the use of force in international law—is it part of, or intrinsic to, the definition of the prohibition on the use of force in Article 2(4) of the Charter? Or is it extrinsic, a separate and independent exception or justification for the use of force? Consider how consent operates quite differently in the crimes of rape (intrinsic to the definition) and battery (extrinsic defense). Our discussion makes clear that the answer to the question of how consent operates has important implications for how we think about and understand the nature of the use of force itself, on whether the prohibition in its entirety can be a jus cogens norm, as well as for how the justification ought to operate in practice. We end by also discussing her earlier work on self-defence as a circumstance precluding wrongfulness (work that will change how you understand that too), and how her thinking about exceptions and justifications in the jus ad bellum has evolved over the course of her intellectual journey. A fantastic conversation!

Materials:

– “Military Assistance on Request and General Reasons Against Force: Consent as a Justification for the Use of Force,” 7 Journal on the Use of Force and International Law (2020) (SSRN version here).

– “Use of Force Against Non-State Actors and the Circumstance Precluding Wrongfulness of Self-Defence,” 30 Leiden Journal of International Law 93 (2017).

– “Self-Defence as a Circumstance Precluding Wrongfulness: Understanding Article 21 of the Articles of State Responsibility,” 85 British Yearbook of International Law 90 (2014).

Reading Recommendations:

– Katie Johnson, “Identifying the Jus Cogens Norms in the Jus ad Bellum,” 70 International and Comparative Law Quarterly (2021).

– Andre de Hoogh, “The Compelling Law of Jus Cogens and Exceptions to Peremptory Norms: To Derogate or not to Derogate, That is the Question!” in Exceptions in International Law (Lorand Bartels and Federica Paddeu, eds., 2020).

– John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007).