IHL

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.

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

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

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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).

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.