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 18 – Mary Ellen O’Connell on the Invalidity of Imminence

In this episode, I speak with Mary Ellen O’Connell, the Robert and Marion Short Professor of Law at the University of Notre Dame Law School. We discuss her recent focus on that the concept of “imminence” and the doctrine of self-defense in international law, through the lens of the killing of Iranian General Qassim Soleimani. Starting with just war theory and the natural law foundations of international law, right through to the text and intent of the UN Charter and current state practice, O’Connell argues that anticipatory self-defense is not lawful, that the concept of imminence has no place in the doctrine of self-defense, and moreover that it has undermined the narrow exceptions to the prohibition on the use of force. In doing so, however, she makes a broader argument that our approach to security must be more holistic and comprehensive, and it should reject the purely realist and positivist assumptions that have driven recent policy.

Materials:

– “The Illusory Standard of Imminence in the International Law of Self-Defense: The Killing of Qassim Soleimani” (unpublished, SSRN)(2021).

Reading Recommendations:

– Christine Gray, International Law and the Use of Force (4th ed., 2018).

– Olivier Corten, The Against War: The Prohibition on the Use of Force in Contemporary International Law (2nd ed., 2021).

– Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004).

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).

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).

 

Episode 13 – Douglas Guilfoyle on the Australian Inquiry into War Crimes in Afghanistan

In this episode, I speak with Douglas Guilfoyle, Associate Professor at the University of New South Wales, Canberra, in Australia. We discuss the recent report of the Inspector-General of the Australian Defence Force on his investigation into war crimes – including murder and cruel treatment of civilians and detainees – alleged to have been committed by members of the Australian Special Forces deployed in Afghanistan. We discuss the impetus for the investigation, the nature of the findings and recommendations, and explore in some detail the report’s treatment of the issue of command responsibility, and its finding that no officers had sufficient knowledge of the misconduct so as to attract criminal liability. This includes a discussion of how the provisions on command responsibility in the Rome Statute were subtly but perhaps significantly adjusted when implemented in the Australian Criminal Code. This leads to the question of what influence the principle of complimentarity and possible ICC involvement may have had in shaping the government’s handling of the issues. Finally we discuss some of the structural, organizational, and cultural features of the Australian forces in Afghanistan that were said to have contributed to the unlawful conduct.

Materials:

“Australian War Crimes in Afghanistan: The Brereton Report,” EJILTalk!, Nov. 23, 2020.

– The Hon. PLG Brereton, Inspector-General of the Australian Defence Force Afghanistan Inquiry Report, Oct. 29, 2020.

– Dan Oakes and Sam Clark, “The Afghan Files,” The ABC, Jul. 10, 2017.

Reading Recommendations:

– Monique Cormier, The Jurisdiction of the International Criminal Court over Nationals of Non-State Parties, (2020).

– Jessie Hohmann and Daniel Joyce, eds., International Law’s Objects, (2019).

– Thomas Rid, Active Measures: The Secret History of Disinformation and Political Warfare, (2020).

Episode 12 – Tom Ruys on the Exercise of Self-Defense to Recover Occupied Territory

In this episode, I speak with Tom Ruys, Professor at the Faculty of Law, Ghent University, Belgium. We discuss a debate he recently sparked with a blog post on the question of whether states my invoke the right of self-defense to justify the use of force to recover previously occupied territory, looking specifically through the lens of the recent seizure of territory in Nagorno-Karabakh by Azerbaijan in a short sharp armed conflict with Armenia. Tom and his co-author, Filipe Rodriguez Silvestre, argue that the initial occupation (in the 1988-94 conflict in the case of Nagorno-Karabakh) cannot be characterized as a continuing armed attack, and that self-defense cannot justify the use of force to recover the territory. In a responding blog post, Dapo Akande and Antonios Tzanakopoulos of Oxford argue that such a use of force can indeed be an act of self-defense, and that Azerbaijan’s actions are in fact so justified — and so we explore the competing arguments. To start things off, however, we do discuss Tom’s seminal book, ‘Armed Attack’ and Article 51 of the UN Charter, both to lay the foundation for discussing self-defense in Nagorno-Karabakh, and to explore whether any of his positions have evolved since publication of the book ten years ago. Finally, we discuss briefly his recent work on economic sanctions, and the relationship between sanctions and the collective security regime. Not to be missed!

Materials:

‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (2010).

– “The Nagorno-Karabakh Conflict and the Exercise of “Self-Defense” to Recover Occupied Land,” Just Security, Nov. 10, 2020 (with Filipe Rodriguez Silvestre).

– “Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework,” in Research Handbook on UN Sanctions and International Law (Larissa van den Herik, ed., 2017).

Reading Recommendations:

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

– Ian Urbina, The Outlaw Ocean: Journeys Across the Last Untamed Frontier (2019).

– Erika de Wet, Military Assistance on Request and the Use of Force (2020).

Episode 11 – Catherine O’Rourke on the Rights of Women in Armed Conflict

In this episode, I speak with Catherine O’Rourke, Senior Lecturer in Human Rights and International Law, and Gender Research Coordinator at the Transitional Justice Institute, at Ulster University School of Law, Northern Ireland. We discuss her very recent book, The Rights of Women in Armed Conflict Under International Law, which examines the manner in which four specific regimes — IHL, international criminal law, human rights law, and the UN Security Council — have interacted in relation to the rights of women in armed conflict, not only in theoretical and doctrinal terms, but also in very practical terms on the ground in the armed conflicts in Colombia, Nepal, and the DRC. There are some surprises in terms of which regimes are strongest, and which institutions most effective, in protecting women’s rights. We discuss both the synergies and the conflicts among the different regimes, assessing how the various regimes fall short in protecting women’s rights, and ultimately, whether the multiplicity of regimes and fragmentation of law is, on balance, a benefit or an obstacle to the protection of women’s rights in armed conflict. Another fascinating discussion that will likely leave listeners clamoring for the book!

Materials:

The Rights of Women in Armed Conflict Under International Law (2020).

– “‘Geneva Convention III Commentary’ What Significance for Women’s Rights?” Just Security, Oct. 21, 2020.

Reading Recommendations:

– Gina Heathcote, Feminist Dialogues on International Law (2019).

– Judith Gardam, “Feminist Interventions into International Law: A Generation On,” 40 Adelaide Law Review 219 (2019).

– Judith Gardam and Michelle Jarvis, Women, Armed Conflict and International Law, (2001).