ICC

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

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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.

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 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 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).