legal theory - JIB/JAB-The Laws of War Podcast

Episode 35 – Tom Dannenbaum on Sieges, the War Crime of Starvation, and Gaza

November 7, 2023 by JIB/JAB

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.

JIB/JAB – The Laws of War Podcast · JIB/JAB – Episode 35: Dannenbaum on Siege and the War Crime of Starvation

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

April 17, 2023 by JIB/JAB

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.

JIB/JAB – The Laws of War Podcast · JIB/JAB – Episode 34: O’Meara – Necessity and Proportionality in Self-Defence

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

February 14, 2023 by JIB/JAB

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.