jus ad bellum

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

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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

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

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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 12 – Tom Ruys on the Exercise of Self-Defense to Recover Occupied Territory

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In this episode, I speak with Tom Ruys, Professor at the Faculty of Law, Ghent University, Belgium. We discuss a debate he recently sparked with a blog post on the question of whether states my invoke the right of self-defense to justify the use of force to recover previously occupied territory, looking specifically through the lens of the recent seizure of territory in Nagorno-Karabakh by Azerbaijan in a short sharp armed conflict with Armenia. Tom and his co-author, Filipe Rodriguez Silvestre, argue that the initial occupation (in the 1988-94 conflict in the case of Nagorno-Karabakh) cannot be characterized as a continuing armed attack, and that self-defense cannot justify the use of force to recover the territory. In a responding blog post, Dapo Akande and Antonios Tzanakopoulos of Oxford argue that such a use of force can indeed be an act of self-defense, and that Azerbaijan’s actions are in fact so justified — and so we explore the competing arguments. To start things off, however, we do discuss Tom’s seminal book, ‘Armed Attack’ and Article 51 of the UN Charter, both to lay the foundation for discussing self-defense in Nagorno-Karabakh, and to explore whether any of his positions have evolved since publication of the book ten years ago. Finally, we discuss briefly his recent work on economic sanctions, and the relationship between sanctions and the collective security regime. Not to be missed!

Materials:

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

– “The Nagorno-Karabakh Conflict and the Exercise of “Self-Defense” to Recover Occupied Land,” Just Security, Nov. 10, 2020 (with Filipe Rodriguez Silvestre).

– “Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework,” in Research Handbook on UN Sanctions and International Law (Larissa van den Herik, ed., 2017).

Reading Recommendations:

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

– Ian Urbina, The Outlaw Ocean: Journeys Across the Last Untamed Frontier (2019).

– Erika de Wet, Military Assistance on Request and the Use of Force (2020).

Episode 10 – Eliav Lieblich on the Humanization of Jus ad Bellum

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In this episode, I speak with Eliav Lieblich, Professor of Law at The Buchmann Faculty of Law, Tel Aviv University, Israel, about the relatively under-studied relationship between international human rights law and the use of force by states. Eliav, in a forthcoming article, uses a recent General Comment of the U.N. Human Rights Committee as a point of departure for analyzing whether, and to what extent, violations of the jus ad bellum regime might also violate the right to life enshrined in the International Covenant on Civil and Political Rights. Thus, does an act of aggression by a state infringe human rights law as well as violate the jus ad bellum regime? And do governments contemplating the use of force in self-defense have to consider the human rights obligations owed to its own citizens, and the rights of the people in the state against which it is intending to use force? Eliav explores these fascinating questions, and their important implications, from not only a doctrinal and theoretical perspective, but also through the lens of just war theory and ethics as well.

Materials:

– “The Humanization of Jus ad Bellum: Prospects and Perils,” 32 Eur. J. Int’l L. (forthcoming, 2021).

– “Self-Defense Against Non-State Actors and the Myth of the Innocent State,” in Global Governance and Human Rights (Nehal Bhuta & Rodrigo Vallejo eds., Forthcoming).

Reading Recommendations:

– Helen Frowe, The Ethics of War and Peace (2nd ed., 2016).

– Tom Dannenbaum, The Crime of Aggression, Humanity, and the Soldier (2018).

– Adil Ahmad Haque, Law and Morality and War (2017).

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 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 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).