Podcast

Episode 30 – Chile Eboe-Osuji on the Ukraine War and Implications for IHL, ICC, and the Crime of Aggression

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In this episode I speak with Chile Eboe-Osuji, former President of the ICC and Distinguished International Jurist at the Lincoln Alexander School of Law, Toronto Metropolitan University in Canada. We discuss why the ICC cannot prosecute crime of aggression in Ukraine and what some of the better alternatives that are currently being debated, as well as the jurisdiction and immunity issues that might arise for some forms of tribunal established for that purpose. We also discuss how other war crimes should be prosecuted, how to think about the claims of genocide. More broadly, we discuss how the war might provide an impetus for improving the international order, beginning with the establishment of a right to peace, amending the Rome Statute to expand the jurisdiction of the Court for the crime of aggression, restoring the jus ad bellum regime, and generally strengthening international criminal justice. A wide ranging and fascinating discussion!

Materials:

– “A Pheonix Moment? International Law After Ukraine,” David B. Goodman Lecture, University of Toronto Faculty of Law, April 2022.

– “Immunity Before International Courts: How There Never Was,” lecture, Western University, Nov. 2021.

Reading Recommendations:

– Documents and records of the Paris Peace Conference, 1919 (link is to only one online source to archival material).

– Documents and records of the London Conference, 1945. (link is to only one online source to archival material).

Episode 29 – David Sloss on Defending Democracies Against Information Warfare

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In this episode I speak with David Sloss, a professor of law at Santa Clara University School of Law, about his new book Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare. David argues that autocracies such as China and Russia are exploiting social media to engage in “warfare by other means” to undermine democracies around the world, and that there are strategic and geopolitical implications to allowing autocracies to conduct this kind of information warfare. We discuss how this form of information warfare calls for different law and policy responses than cyber operations, or other forms of interference in the electoral processes or domestic politics of nations, and why in his view the best response is a coordinated transnational regulatory system agreed to by like-minded democracies, which would include the banning of Russian and Chinese state agents from social media platforms. We explore several of the likely objections to his proposal, including its implicit rejection of broader and more universal international law solutions, whether it distracts from several larger threats to democracy posed by social media platforms, the risk of securitizing an essentially non-military problem, and some of the more technical challenges to its implementation. We only scratch the surface of everything the book has to offer, but it provides a lot of food for thought!

Materials:

– Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (2022).

Reading Recommendations:

– Yochai Benkler et al., Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (2018);

– Laura Rosenberger, “Making Cyberspace Safe for Democracies,” Foreign Affairs, May/June, 2020.

– Aleksi Knuutila et al., “Global Fears of Disinformation: Perceived Internet and Social Media Harms in 142 Countries,” Oxford Internet Institute (2020).

– The Varieties of Democracy Institute (V-Dem).

Episode 28 – The War in Ukraine: Jus ad Bellum Implications

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In this special episode, I discuss aspects of the Russian invasion of Ukraine with Professors Eliav Lieblich of Tel Aviv University Faculty of Law, Marko Milanovic of the University of Nottingham School of Law, and Ingrid Wuerth of Vanderbilt University School of Law. The focus of our discussion is how we should be thinking about what this war means for the jus ad bellum regime and the collective security system. While the invasion is clearly an unlawful and egregious act of aggression, have unlawful uses of force by Western states served to weaken the system in a way that is in any way relevant to the current conflict? Has the focus on humanitarian issues, and human rights law more generally, somehow similarly weakened the system? Should this war be understood as a failure of the collective security system? Is there a risk that the wrong lessons may be drawn from the conflict, particularly in the area of nuclear non-proliferation? And, perhaps most importantly, how should we begin to think about restoring or even reforming both the jus ad bellum regime and the collective security system more broadly? A fascinating discussion about hugely important issues.

Materials:

– Marko Milanovic, “What is Russia’s Legal Justification for Using Force in Ukraine,” EJILTalk!, Feb. 24, 2022.

– Ingrid Wuerth, “International Law and the Russian Invasion of Ukraine,” Lawfare, Feb. 25, 2022.

– Eliav Lieblich, “Not Far Enough: The European Court of Human Rights Interim Measures on Ukraine,” Just Security, Mar. 7, 2022.

– Monica Hakimi, Twitter thread exploring legal distinctions between Western violations of Art. 2(4) from the current Russian act of aggression.

Recommended Reading:

– Nicholas Mulder, The Economic Weapon: The Rise of Sanctions as a Tool of War (2022).

– International law blogs: EJILTalk!, Opinio Juris, Just Security, Lawfare, Armed Groups and International Law.

– Ruys, Tom, et al., The Use of Force in International Law: A Case-Based Approach (2018).

Episode 27 – Samuel Moyn on the Humanizing of War

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In this episode I speak with Samuel Moyn, who is a Professor of Jurisprudence at Yale Law School and Professor of History at Yale University. Sam has written a number of books on issues at the intersection of history and international human rights, but we here discuss his most recent book, Humane: How the United States Abandoned Peace and Reinvented War. Taking off from an insight of Leo Tolstoy’s, the book provocatively explores how an increasing focus on the humanization of war may have made us more accepting of armed conflict, and thereby undermined the movement to constrain the resort to war. In our discussion we explore some of the historical accounts that form the premises of this argument, including the claim that IHL did little to make war more humane until after the Vietnam war, particularly in the history of Western conflicts with non-white peoples; how armed conflict become far more humanized in the so-called “global war on terror;” and how this increasing focus on humanizing war has resulted in a corresponding decline in efforts to constrain the resort to war. We dig into the nature and implications of this claimed inverse relationship, and what forces and actors he thinks help to explain the phenomenon, and end with the question of what might might be done, and by whom, to address the problem of this declining focus on preventing war – an urgent question in the circumstances.

Materials:

– Humane: How the United States Abandoned Peace and Reinvented War (Farrar, Straus and Giroux, 2021).

Reading Recommendations:

– Amanda Alexander, “A Short History of International Humanitarian Law,” 26 European Journal of International Law 109 (2015).

– Boyd van Dijk, Preparing for War: The Making of the Geneva Conventions (Oxford Univ. Press, 2022).

– Giovanni Mantilla, Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict (Cornell Univ. Press, 2020).

Season 3: Episode 26 – Olivier Corten on The Law Against War

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In this first episode of Season 3 of the podcast, I speak with Olivier Corten, Professor of International Law at the Center for International Law, Free University of Brussels, in Belgium. Olivier specializes in both the international law on the use of force, and international law theory, and was the Director of the Center for International Law at Free University of Brussels until 2019. In our conversation we discuss the 2nd edition of his book The Law Against War, which was published in late 2021 (the first edition was published in 2010). We begin with his analysis of the differing methodological approaches – what he calls the restrictive and the expansive approach – to international law on the use of force. From there, our conversation moves on to explore the substantive content of the book, beginning with the threshold for what constitutes a use of force, and moving through the scope and operation of the doctrine of self-defense, including the proper understanding of the role played by the principle of necessity, the validity of any and all conceptions of anticipatory self-defense, the use of force by invitation, and whether and how the law on the use of force applies to actions against non-state actors, and to cyber operations. We end where we started, discussing the problem posed by the very different theoretical and methodological approaches to an understanding of the jus contra bellum, and how one might think about bridging the divide.

Materials:

– The Law Against War, 2nd ed. (Hart Publishing, 2021).

Recommended Reading:

– Paulina Starski, “Silence within the Process of Normative Change and the Evolution of the Prohibition on the Use of Force: Normative Volatility and Legislative Responsibility,” 4 Journal on the Use of Force and International Law 14 (2017).

– Victor Kattan, “Furthering the ‘War on Terrorism’ Through International Law: How the United States and the United Kingdom Resurrected the Bush Doctrine on Using Preventative Military Force to Combat Terrorism,” 5 Journal on the Use of Force and International Law 97 (2018).

– Agatha Verdebout, Rewriting Histories of the Use of Force: The Narrative of ‘Indifference,’ (Cambridge Univ. Press, 2021).

Episode 25 – Aslı Bâli on Economic Sanctions and the Laws of War

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In the last episode of Season 2, I speak with Aslı Bâli, Professor of Law at UCLA in the United States, and Co-Director of the Middle East Division of Human Rights Watch, among other things. She specializes in both international law as it relates to armed conflict and human rights, and on comparative constitutional law with a focus on the Middle East. We discuss the lawfulness of comprehensive autonomous economic sanctions, and the relationship they may have with the various regimes that govern the use of force and armed conflict. Economic sanctions are often viewed as a legitimate and effective alternative to the use of force in international relations. Yet comprehensive sanctions can and do cause the kind of humanitarian harm and economic disruption that in other circumstances could be unlawful under IHL, or constitute a use of force if caused by cyber operations or even naval blockade, and they are potentially in violation of human rights law. So aside from the ethical and strategic questions that they pose, economic sanctions raise legal issues, including issues at the intersection with the laws of war—which we explore in a fascinating conversation!

Materials:

– “Sanctions are Inhumane – Now , and Always,” The Boston Review, Mar. 26, 2020.

– Dapo Akande, Payam Akhavan, and Eirik Bjorge, “Economic Sanctions, International Law, and Crimes Against Humanity: Venezuela’s Referral to the International Criminal Court,” American Journal of International Law, Apr. 29, 2021.

Recommended Reading:

– Joy Gordon, Invisible War: The United States and the Iraq Sanctions (2010).

– Alex de Waal, Mass Starvation: The History and Future of Famine (2018).

– Nicholas Mulder and Boyd van Dijk, “Why Did Starvation Not Become the Paradigmatic War Crime in International Law?” in Ingo Venzke and Kevin Jon Heller eds., Contingency in International Law (2021).

– Tom Dannenbaum, “Encirclement, Deprivation, and Humanity: Revising the San Remo Manual Provisions on Blockade,” 97 International Law Studies 307 (2021).

Episode 24 – Judge Chile Eboe-Osuji on the ICC, the Concept of “Attack,” and More

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In this episode, I speak with Judge Chile Eboe-Osuji, Judge and President of the ICC until he stepped down earlier this year. He served as Judge on the ICC for almost ten years, and was President of the Court for three. Prior to that he was Legal Advisor to the UNHCR, and before that, a prosecutor at the International Criminal Tribunal for Rwanda. Orignally from Nigera, Judge Eboe-Osuji is a Canadian, and he practiced law in Toronto prior to his international law career. He is soon to take up a new position at the Lincoln Alexander School of Law at Ryerson University in Toronto. In our conversation Judge Eboe-Osuji reflects on his role in the development of the ICC, and some of the criticisms of the Court, before turning to a more detailed discussion of the meaning of the term “directing attacks” in the Rome Statute, through the lens of the Ntaganda case. This leads to a discussion of the relationship between so-called Hague Law and Geneva Law in IHL, and between war crimes and crimes against humanity within the Rome Statute, all within the context of the object and purpose of IHL, and the need for intelligibility and accessibility as a fundamental component of the rule of law – fascinating discussion!

Materials:

– The Prosecutor v. Bosco Ntaganda, Appeal Chamber Decision, Mar. 30, 2021.

– The Prosecutor v. Bosco Ntaganda, Trial Chamber Decision, Jul 28, 2019.

– Abhimanyu George Jain, “The Ntaganda Appeal Judgement and the Meaning of “Attack” in the Conduct of Hostilities War Crimes,” EJILTalk!, Apr. 2, 2021.

– Ronald Acala and Sasha Radin, “Symposium Intro: The ICC Considers the Definition of ‘Attack.'” Articles of War, Oct. 27, 2020.

Reading Recommendations:

– Stanley Milgram, Obedience to Authority: An Experimental View (1969).

– Hannah Arendt, Eichmann in Jerusalem: The Banality of Evil (1963).

– Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (2017).

Episode 23 – The Gaza Conflict

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In this episode I discuss the legal issues raised in the Gaza conflict of May 2021, with Professors Janina Dill of the University of Oxford, Adil Haque of Rutgers University Law School, and Aurel Sari of Exeter University Law School. The discussion begins by placing the legal issues in context, and addressing the question of whether the narrow focus on technical legal aspects may serve to obscure the broader ethical issues, or even facilitate and legitimate injustice. The analysis turns to the the questions regarding the legal authority or justification for Israel’s use of force, and whether its use of force complies with the limiting principles of whichever legal regime may govern. Turning to the conduct of hostilities, and using the attack on the Al Jalaa Tower (which housed Al Jazeera and AP) as a case study, we discuss the extent to which IDF actions complied with the principles of distinction, proportionality, and precautions in attack, debate the legal effect of warnings, and what burden there may be on belligerents to disclose evidence in support of their claims of lawfulness. A deep and sophisticated analysis of the issues.

Materials:

– Adil Haque, “The IDF’s Unlawful Attack on Al Jalaa Tower,” Just Security, May 27, 2021.

– Aurel Sari, “Israeli Attacks on Gaza’s Tower Blocks,” Articles of War, May 17, 2021.

Recommended Reading:

– Ayel Gross, “The 2021 Gaza War and the Limits of International Humanitarian Law,” Just Security, Jun. 1, 2021.

– Eliav Lieblich, “Dispatch from Israel on Human Shields: What I Should’ve Said to a Dad on the Playground,” Just Security, May 18, 2021.

– Noam Lubell and Amichai Cohen, “Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts,” 96 International Law Studies 160 (2020).

Episode 22 – Srinivas Burra on India’s Apparent Shift on Self-Defense

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In this episode, I speak with Srinivas Burra, professor of law at South Asian University, Faculty of Legal Studies, in New Delhi, India. Srinivas has written extensively on both jus ad bellum and international humanitarian law, often with a focus on India’s practice and position in relation to these legal regimes. We discuss first how India’s position regarding the doctrine of self-defense, as indicated in statements in the recent Arria-formula meeting of the U.N. Security Council, appears to have shifted quite significantly as compared to the posture it adopted in the context of strikes against non-state actors within Pakistan in 2016 and 2019. Srinivas interprets the recent statements to suggest that India accepts both anticipatory self-defense and self-defense against non-state actors, but surprisingly, views its rejection of the “unwilling or unable” doctrine as taking a more expansive and aggressive posture than that doctrine allows when it comes to defending against non-state actors in non-consenting states. Turning to international humanitarian law, we discuss why India has continued to hold out against ratifying the Additional Protocols to the Geneva Conventions. Another fascinating discussion!

Materials:

– “India’s Decisive Turn on the Right to Self-Defence,” Opinio Juris, Mar. 22, 2021.

– “Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice,” 24 Asian Yearbook of International Law (2018).

– “India’s Strange Position on the Additional Protocols of 1977,” EJILTalk!, Feb. 15, 2019.

Recommended Reading:

– B. S. Chimni, “The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective,” 31 European Journal of International Law, volume 1211 (2020).

– Ntina Tzouvala, “TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures,” 109 American Journal of International Law: Unbound  266 (2015).

– Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’, in Anne Orford, ed., International Law and its Others, (2006).

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

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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).