International law

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

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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

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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

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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).