Episode 9 – Oona Hathaway on War Powers and the Scope of National Security

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In this episode, I speak with Oona Hathaway, Professor of Law at Yale Law School and Professor of International Law and Area Studies at the Yale University MacMillan Center. We discuss the constitutional and legislative constraints on the executive war-making power, both in terms of the theoretical rationale for such constraints, and in terms of the constitutional and legislative form such constraints take in U.S. legal system. After discussing how and why such constraints in the U.S. have eroded over time, reaching a nadir in the Libyan intervention, Oona explains how the War Powers Resolution could be revised, in ways more consistent with international law, and how Congress could employ the courts, in order to re-establish Congressional authority over decisions to engage in armed conflict. We also discuss how such crises as the Coronavirus pandemic and climate change should cause us to re-think the scope and character of national security priorities and policy. We wrap up with a short discussion of the collaborative process involved in the writing of her co-authored work The Internationalists, and the ethical obligations in being a government lawyer. A fantastic foray into war powers and evolving perspectives on national security!

Materials:

– “How to Revive Congress’s War Powers,” Texas National Security Review (2019).

– “How to Recover a Role for Congress and the Courts in Decisions to Wage War,” Just Security, Jan. 10, 2020)(with Geoffrey Block).

– “COVID-19 Shows How the U.S. Got National Security Wrong,” Just Security, Apr. 7, 2020.

Reading Recommendations:

– Kate Manne, Entitled: How Male Privilege Hurts Women (2020).

– Samuel Moyn, Humane: How Americans Abandoned Peace and Reinvented War, [working title – forthcoming, see this YouTube session for Sam’s discussion of the book!]

– Hilary Mantel, Wolf Hall Trilogy (2009)

Episode 8 – Craig Forcese on the History and Significance of the Caroline Incident

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In this episode, Craig Forcese, Professor of Law at the University of Ottawa in Canada, speaks about his book Destroying the Caroline: The Frontier Raid that Reshaped the Right to War. We talk about the history of the famous incident and the diplomatic dispute that gave rise to the famous Caroline test, how and why the incident managed to exercise such an outsize influence over the development of the jus ad bellum regime, and what that says about the nature of international law itself. We also discuss how the incident, with the history itself often mischaracterized, is used and abused in current debates around such issues as anticipatory self-defense, imminence, and the unwilling or unable doctrine. We wrap up with a brief discussion of Canadian national security law, and how it differs from that of the U.S. and other allies. It will likely change your understanding of the Caroline Incident, and should make you want to read the book!

Materials:

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

– National Security Law: Canadian Practice in International Perspective, 2nd ed. (2020).

Reading Recommendations:

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

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

– Journal on the Use of Force and International Law .

Episode 7 – Alonso Gurmendi Dunkelberg on Latin American Approaches to the Laws of War

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In this episode, I speak with Alonso Gurmendi Dunkelberg, Professor of Law at the Universidad del Pacifico in Lima, Peru. We discuss his recent writing on the Latin American approaches to, and perspectives on, the jus ad bellum regime and principles of non-intervention. Drawing on a rich history of the Latin American response to the Monroe Doctrine and European approaches to intervention in the 19th Century, Alonso explains how the distinct Latin American perspectives developed, found expression in the Montevideo Convention of 1933, and contributed to the Latin American embrace of the U.N. system in 1946. He explains how a misunderstanding of the Latin American perspective leads to common misinterpretations of Latin American positions and responses to recent interventions, such as those in Syria, and debates over doctrinal issues, such as the validity of humanitarian intervention or the unwilling or unable doctrine. We round off our discussion by putting it all into the context of Third World approaches to international law. An eye-opening romp through history and theory!

 

Materials:

– “A Legal History of Consent and Intervention in Civil Wars in Latin America,”  7  J. Use of Force and Int’l L. 1 (2020).

– “The Latin American View of Jus ad Bellum,” Just Security, May 16, 2018.

– “The Other Carolines,” Opinio Juris, Feb. 17, 2020.

Reading Recommendations:

– Juan Pablo Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks (2017).

– Liliana Obregón, “Between Civilisation and Barbarism: Creole Interventions in International Law,” 27 Third World Quarterly 815 (2006).

– Andrew Fitzmaurice, “Discovery, Conquest, and Occupation of Territory,” in The Oxford Handbook of the History of International Law, Bardo Fassbender and Anne Peters, eds. (2012).

Episode 6 – Monica Hakimi on the Informal Regulation of Jus ad Bellum

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In this episode, I speak with  Monica Hakimi, Professor of Law at the University of Michigan Law School. We discuss a recent article of hers in which she argues that the manner in which the U.N. Security Council tacitly endorses or supports the use of force by states that would otherwise be unlawful, must be understood as forming an “informal regulation” that is part of the jus ad bellum regime. She argues that this is not only true as a descriptive matter, but that as a normative matter we should embrace this as helping to strengthen the jus ad bellum regime. We debate some of these normative implications, and the extent to which such an informal regulation is consistent with different conceptions of the rule of law – which leads us into another recent chapter of hers on the value of state-level argument about the jus ad bellum. a fascinating discussion all round!

Materials:

– “The Jus ad Bellum‘s Regulatory Form,” 112 American J. Int’l L. 151 (2018).

– Symposium on Monica Hakimi, “The Jus ad Bellum‘s Regulatory Form,” 112 AJIL Unbound (2018).

Reading Recommendations:

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

– Michael Reisman, The Quest for World Order and Human Dignity in the Twenty-First Century (2013).

– Don Herzog, Sovereignty, RIP (2020).

Episode 5 – Eric Talbot Jensen on Human Judgment and Autonomous Weapons

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In Episode 5, I speak with Eric Talbot Jensen, Professor of Law at BYU Law School. Eric discusses his recent law review article, in which he argues that the law of armed conflict does not require human judgment to be involved in targeting decisions, and that therefore autonomous weapons are not per se unlawful. What is more, he goes further to argue that because autonomous weapons are not unlawful, and may in fact comply with the rules of IHL better than humans, there should be no limitation on the research and development of such weapons. We discuss some of the strong ethical counter-arguments to his position.

Materials:

– “The (Erroneous) Requirement for Human Judgment (and Error) in the Law of Armed Conflict,” 96 Int’l L. Stud. 26 (2020).

Reading Recommendations:

– Paul Scharre, Army of None: Autonomous Weapons and the Future of War (2018).

– United States Department of Defense, “Directive No. 3000.09, Autonomy Weapons Systems,” Nov. 1, 2012 (as revised).

– Chris Jenks and Rain Liivoja, “Machine Autonomy and the Constant Care Obligation,” ICRC Humanitarian Law & Policy, Dec. 11, 2018.

Episode 4 – Ashley Deeks on AI and the Laws of War

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In this episode, I speak with Ashley Deeks, Professor of Law and Director of the National Security Law Center. Ashley begins by explaining how AI and machine learning may implicate the jus ad bellum regime – being used to assist governments in decision-making around the use of force and the exercise of the right of self-defense. We also discuss briefly the risks associated with the development of artificial general intelligence, and whether international law should play a role in addressing that risk. Conversation then turns to how AI will implicate the law of armed conflict, in terms of both assisting commanders in the field with ensuring their conduct is in compliance with IHL, and also thinking about how IHL might be implemented by coding the rules and principles of IHL into weapons systems. Lots of food for thought!

Materials:

– “Machine Learning, Artificial Intelligence, and the Use of Force by States,” 10 J. Nat. Sec. L. & Pol. (2019) (with Noam Lubell and Daragh Murray).

– “Predicting Enemies,” 104 VA. L. Rev. (2018).

– “Coding the Law of Armed Conflict: First Steps,” in Matthew C. Waxman ed., The Law of Armed Conflict in 2040 (forthcoming, 2020).

(Some of the material discussed is still in draft form and not yet on-line – watch for them in the upcoming Lieber Blog; and see her SSRN page for more writing on AI.)

Reading Recommendations:

– “How Will Artificial Intelligence Affect International Law?” 114 AJIL Unbound 138 (2020).

– Lisa Shay et al., “Do Robots Dream of Electric Laws? An Experiment in the Law as Algorithm,” in Ryan Calo et al, eds. Robot Law (2016).

– John Allen and Darrell West, Turning Point: Policymaking in the Era of Artificial Intelligence (2020).

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.