IHL

Episode 39 – Dill & Haque on IHL and the IDF Conduct of Hostilities in Gaza

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In this episode Janina Dill of the University of Oxford and Adil Haque of Rutgers Law School return to the podcast to address the question of whether it is possible now, while hostilities are still ongoing, to assess whether some aspects of the IDF’s conduct of hostilities may be in violation of IHL. The question is germane because many argue that one cannot assess such violations until all of the evidence is available and has been analyzed, and we discuss why this may not be so. And the focus on the IDF, without delving into the violations of Hamas and Islamic Jihad, is justified because there is really no debate over the violations and war crimes committed by either of these – but there remains quite robust debate over whether the IDF is acting in compliance with IHL, and the issue is highly relevant now for countries that are supplying Israel with weapons. In the discussion we begin with explanations of the core principles of IHL, namely distinction, proportionality, and precautions in attack, as well as the treaty provisions that codify them, and how these are subject to interpretation. We also explore how the concept of intent, as well as the standards of evidence, should be understood differently depending on whether one is assessing collective violations of IHL or trying to prosecute individuals for war crimes, and whether one is considering the operation of law as an ex ante modifier of behavior, or as ex post mechanism for imposing accountability. We then dive into a discussion of some of the specific aspects of IDF conduct of hostilities, with a focus on strikes on civilian targets, and the use of indiscriminate weapons (or use of inappropriate weapons causing indiscriminate harm) in civilian areas, as well as how one should best understand the IDF’s use of warnings, the use of AI in targeting decisions, and the claims that Hamas is employing human shields. There is much to unpack, and there is much that we could not get to, but it is fascinating if sobering analysis.

Materials:

– Tom Dannenbaum and Janina Dill, “International Law in Gaza: Belligerent Intent and Provisional Measures,” American Journal of International Law, (forthcoming, 2024)(link to SSRN version).

– United Nations Human Rights Council, Human Rights Situation in the Occupied Palestinian Territory, Including East Jerusalem, and the Obligation to Ensure Accountability and Justice – Report of the High Commissioner for Human Rights, Feb. 23, 2024, U.N. Doc.No. A/HRC/55/28.

– United Nations Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, Including East Jerusalem, and Israel, May 27, 2024, U.N. Doc.No. A/HRC/56/26.

– Human Rights Watch, Gaza: Israelis Attacking Known Aid Worker Locations: End Unlawful Attack, Ensure Accountability, May 14, 2024.

– Amnesty International, Israel/OPT: Israeli Air Strikes that Killed 44 Civilians Further Evidence of War Crimes – New Investigation, May 27, 2024.

– Yuval Abraham, “‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza,” +972 Magazine, Apr. 3, 2024.

– “Israel Defence Forces’ Response to Claims About Use of ‘Lavender’ AI Database in Gaza,” The Guardian, Apr. 3, 2024.

– Israel Ministry of Foreign Affairs, Hamas-Israel Conflict 2023: Key Legal Aspects, Nov. 2, 2023.

– John Ramming Chappell, “Key Takeaways from Biden Administration Report on Israeli Use of US Weapons,” Just Security, May 11, 2024.

Reading Recommendations:

– Yousuf Syed Khan, “The Directive to Evacuate Northern Gaza: Advance Warning or Force Displacement?,” Just Security, Oct. 19, 2023.

– Eliav Lieblich, “On Civilians’ Return to North Gaza: What International Humanitarian Law Requires,” Just Security, Feb. 12, 2024.

– Brianna Rosen, “Unhuman Killings: AI and Civilian Harm in Gaza,” Just Security, Dec. 15, 2023.

– Tom Dannenbaum, “The Siege of Gaza and the Starvation War Crime,” Just Security, Oct. 11, 2023.

– Mark Schack, “In Defence of Preliminary Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp,” EJILTalk!, Nov. 8, 2023.

– Janina Dill, “Our Shared Moral Horror,” EJILTalk!, Oct. 13, 2023.

Episode 37 – Martin and Hafetz on “Eye in the Sky”

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This episode is a joint production and cross-posting with the Law on Film Podcast, produced and hosted by Jonathan Hafetz, a professor of law at Seton Hall Law School, and expert in national security law, international criminal law and human rights, as well as constitutional law. We discuss the film “Eye in the Sky,” a 2015 film likely known to most JIB/JAB listeners,  about a joint British and American drone strike against al-Shabaab terrorists in Kenya, and which intelligently and engagingly explores the legal, ethical, philosophical, political, and strategic issues raised by the operation. We not only examine the film’s treatment of the legal issues implicated, including whether IHL should apply at all, and how the principles of distinction, necessity, proportionality, and precautions in attack are illustrated in the film, but we also explore the relationship between these principles and some of the ethical and strategic aspects of the decision-making in the film. We round out the conversation with a discussion of some other engaging films that similarly explore law in the context of armed conflict. I very much enjoyed the conversation!

Materials:

– Craig Martin, A Means-Methods Paradox and the Legality of Drone Strikes in Armed Conflict, 19:2 Int’l J. Human Rights 142 (2015).

– House of Lords and House of Commons Joint Committee on Human Rights, The Government’s Policy on the Use of Drones for Targeted Killing, Second Report, 2015-16 (2016).

– Chairman of the Joint Chiefs of Staff Instruction, No-Strike and Collateral Damage Estimation Methodology, Feb. 13, 2009.

Movie Recommendations:

– Taxi to the Darkside (2007)

– Breaker Morant (1980)

– Paths of Glory (1957)

– A War (2015)

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 32 – Boyd van Dijk on the Making of the Geneva Conventions

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In this episode I speak with Boyd van Dijk, currently a McKenzie Fellow at the University of Melbourne, and formerly a fellow at the Lauterpacht Centre for International Law and the University of Cambridge. We talk about his new book, Preparing for War: The Making of the Geneva Conventions, which is a detailed history of the years-long process of negotiations that resulted in the treaties of 1949. We discuss some of the myths surrounding the history of the conventions, as well as the tensions and conflicts not just between parties to the negotiations, but also within the delegations and among different departments of each of the parties, caused by conflicting interests, values, and paradoxes within their positions. We dig into the weeds of some of the different aspects of the negotiations, and discuss why this history should matter to how we think about and understand the operation of the conventions today. A fascinating conversation that only scratches the surface of his book!

Materials:

– Preparing for War: The Making of the Geneva Conventions (2022).

Reading Recommendations:

– Giovanni Mantilla, Lawmaking Under Pressure: International Humanitarian Law and Internal Armed Conflict (2020);

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

– Jessica Whyte, “The ‘Dangerous Concept of the Just War’: Decolonization, Wars of National Liberation, and the Additional Protocols of the Geneva Conventions,” Humanity, Jan. 2019.

 

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).

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 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 19 – Sarah Holewinski on the Mitigation of Harm to Civilians in Armed Conflict

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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.

Season 2: Episode 15 – Michael Schmitt on Cyber Ops and the Laws of War

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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.