Jus ad bellum

Episode 3 – Adil Haque on the Use of Force, Aggression, and Self-Defense

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In this episode, I speak with Adil Haque, Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School. Our discussion focuses primarily on two recent blog posts on Just Security, in which Adil explores the relationship between the use of force, aggression and self-defense. Based on extensive research into the travaux preparatoire for the U.N. Charter, Adil suggests that self-defense is not exactly an exception to the prohibition on the use of force in Art. 2(4) of the Charter, but rather is an exception that only the U.N. Security Council may authorize the use of force to deal with aggression. What is more, self-defense is then understood as being in response to aggression, and that an “armed attack” as used in Art. 51 of the Charter must be understood in these terms. As Adil explains, this both reinforces some of the standard views on self-defense, but also alters and challenges some of those views. It is a conversation that will likely have you questioning your understanding of the relationship! We also briefly discuss his book, Law and Morality at War, at least enough to make you want to read it.

Materials:

– “The United Nations Charter at 75: Between Force and Self-Defense – Part One,” Just Security, Jun. 24, 2020.

– “The United Nations Charter at 75: Between Force and Self-Defense – Part Two,” Just Security, Jun. 24, 2020.

– “‘Clearly of Latin American Origin’: Armed Attack by Non-State Actors and the UN Charter,” Just Security, Nov. 5, 2019.

Reading Recommendations:

– Craig Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (2018).

– Tadashi Mori, Origins of the Right of Self-Defence in International Law: From the Caroline Incident to the United Nations Charter (2018).

– Janina Dill, “Toward a Moral Division of Labour Between IHL and IHRL during the Conduct of Hostilities,” in Z. Bohrer, J. Dill, & H. Duffy eds, Law Applicable to Armed Conflict (2020).

Episode 2 – Kevin Jon Heller on Unilateral Humanitarian Intervention

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In this episode I speak with Kevin Jon Heller, Professor of International Law and Security at the University of Copenhagen (when we spoke, he was still a professor of law at the University of Amsterdam!), and cross-appointed as Professor of Law, Australian National University, College of Law. Our discussion focuses on a recent and soon-to-be published article of Kevin’s, The Illegality of “Genuine” Unilateral Humanitarian Intervention (draft on SSRN posted below). In addition to the more common arguments that  unilateral humanitarian intervention is unlawful and that it should remain so, Kevin also makes the more novel and likely controversial argument that the use of force for purposes of unilateral humanitarian intervention constitutes an act of aggression as defined in the Rome Statute, and that the perpetrators could, theoretically, be charged for the individual crime of aggression.

Materials:

– “The Illegality of ‘Genuine’ Unilateral Humanitarian Intervention,” forthcoming 2020, (draft on SSRN).

Reading Recommendations:

– Francine Hirsch, Soviet Judgment at Nuremberg: A New History of the International Military Tribunal after World War II (2020).

– Craig Jones, The War Lawyers (2020).

– Moshen al Attar, “TWAIL: A Paradox within a Paradox,” 22 Int’l Comm. L.R. 163 (2019).

Episode 1 – An Introduction by Host Craig Martin

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I am Craig Martin, the host of this podcast. In this introductory episode, I explain briefly the objectives, scope, and format of the podcast. I also provide an overview of the main legal regimes that comprise “the laws of war,” namely the jus ad bellum and jus in bello regimes – which, respectively, govern the conditions under which states may use force against other states, and govern the conduct of armed forces within armed conflict. I also refer to their relationship with some other regimes that affect armed conflict, including international human rights law, and constitutional war powers provisions in domestic law.

While this episode is aimed primarily at the non-expert, to provide background that may be helpful in understanding the issues raised in subsequent episodes, it also highlights many of the areas of controversy and debate that we will address in episodes to come, and so may be of interest to the expert listeners as well.

Supplementary Material:

I include below some links to my own writing on these issues, as these articles include sections that summarize the legal regimes discussed in this episode, which some may find helpful; and they will also give a sense of where I stand on some of the more controversial issues:

– “Challenging and Refining the “Unwilling or Unable” Doctrine,” 52 Vanderbilt J. Trans. L. 245 (2019).

– “A Means-Methods Paradox and the Legality of Drone Strikes in Armed Conflict,” 19:2 Int’l J. Human Rights 142 (2015).

– “Taking War Seriously: The Case for Constitutional Constraints on the Use of Force, in Compliance with International Law,” 76:2  Brooklyn L. Rev. 611 (2011).

The rest of my writing can be found on my webpage.