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

 

 

 

 

 

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

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

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

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

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).

Episode 17 – Nessa Interviews Martin on Climate Change and the Jus ad Bellum Regime

In this episode, I relinquish the hosting to  Jasmin Johrun Nessa of Liverpool University Law School, and she interviews me on my recent work on how the climate change crisis may implicate the jus ad bellum regime. Jasmin is finishing up her doctorate on the doctrine of self-defense in jus ad bellum, and teaching international law among other things, at Liverpool Law School. She is also a co-general editor of the Journal on the Use of Force and International Law’s “Digest of State Practice.” We discuss my recent article on the climate change crisis and the jus ad bellum regime, in which I argue that as the climate change crisis deepens, and not only the consequences but the causes of climate change are viewed as threats to both national security and international peace and security, there will be pressure to relax the jus ad bellum regime to allow for the threat or use of force against “climate rogue states.” This will include a relaxation of the conditions for permissible self-defense, as we have seen in response to other novel threats, and pressure for a new exception to the prohibition on the use of force, along the lines of humanitarian intervention. I suggest that these arguments will be persuasive but dangerous, not only increasing the likelihood and incidence of war, but also being counterproductive to the climate change crisis effort itself — and so we must begin to discuss the issues now, and contemplate how to resist such developments, before the pressure mounts.

Materials:

– “Atmospheric Intervention: The Climate Change Crisis and the Jus ad Bellum Regime,” 45 Columbia Journal of Environmental Law 331 (2020).

Recommended Reading:

– Oona Hathaway and Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).

– John Fabian Witt, Lincoln’s Code: The Laws of War in American History (2012).

– Ray Moore and Donald Robinson, Partners for Democracy: Crafting the New Japanese State Under MacArthur (2002).

Episode 16 – Terry Gill on the Use of Force Against Non-State Actors

In this episode, I speak with Terry Gill, the Professor of Military Law at the University of Amsterdam, Center for International Law, and the Netherlands Defence Academy, and also the Director of the Netherlands Research Forum on the Law of Armed Conflict and Military Operations (LACMO). We discuss his recent article (co-authored with Kinga Tibori-Szabó) on the use of force against non-state actors (NSAs) within the territory of states that that are not substantially involved with, or exercising significant control over, the NSA, but which also do not consent to the use of force against the NSA within their territory – a familiar but still hot subject of ongoing debate. Terry explains why a strict understanding of the principle of necessity should be at the center of the analysis of these issues, and thus offers some perspectives on the so-called unwilling or unable doctrine that are quite different from others who support the right to use force against NSAs. We also revisit his much earlier work on the Nicaragua v. USA judgment of the ICJ, and how its formulation of attribution should be understood in this context.

Materials:

“Twelve Key Questions on Self-Defense Against Non-State Actors,” 95 International Law Studies 468 (2019) (with Kinga Tibori-Szabó).

Reading Recommendations:

– Kinga Tibori-Szabó, Anticipatory Action in Self-Defence (2011).

– Sir Humphrey M. Waldock, “The Regulation of the Use of Force by Individual States in International Law,” 81 Hague Academy of International Law Lectures (1962).

– Jack Vance, Suldrun’s Garden: Lyonesse Trilogy Vol. 1 (1982).

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

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 14 – Federica Paddeu on Consent as a Justification for the Use of Force

In this episode I speak with with Federica Paddeu, Professor and Derek Bowett Fellow in Law at Queen’s College, Faculty of Law, Cambridge University in England. We discuss her recent work on how best to understand the operation of consent as a justification for the use of force in international law—is it part of, or intrinsic to, the definition of the prohibition on the use of force in Article 2(4) of the Charter? Or is it extrinsic, a separate and independent exception or justification for the use of force? Consider how consent operates quite differently in the crimes of rape (intrinsic to the definition) and battery (extrinsic defense). Our discussion makes clear that the answer to the question of how consent operates has important implications for how we think about and understand the nature of the use of force itself, on whether the prohibition in its entirety can be a jus cogens norm, as well as for how the justification ought to operate in practice. We end by also discussing her earlier work on self-defence as a circumstance precluding wrongfulness (work that will change how you understand that too), and how her thinking about exceptions and justifications in the jus ad bellum has evolved over the course of her intellectual journey. A fantastic conversation!

Materials:

– “Military Assistance on Request and General Reasons Against Force: Consent as a Justification for the Use of Force,” 7 Journal on the Use of Force and International Law (2020) (SSRN version here).

– “Use of Force Against Non-State Actors and the Circumstance Precluding Wrongfulness of Self-Defence,” 30 Leiden Journal of International Law 93 (2017).

– “Self-Defence as a Circumstance Precluding Wrongfulness: Understanding Article 21 of the Articles of State Responsibility,” 85 British Yearbook of International Law 90 (2014).

Reading Recommendations:

– Katie Johnson, “Identifying the Jus Cogens Norms in the Jus ad Bellum,” 70 International and Comparative Law Quarterly (2021).

– Andre de Hoogh, “The Compelling Law of Jus Cogens and Exceptions to Peremptory Norms: To Derogate or not to Derogate, That is the Question!” in Exceptions in International Law (Lorand Bartels and Federica Paddeu, eds., 2020).

– John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007).

 

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

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).