targeted killing

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)

Season 3: Episode 26 – Olivier Corten on The Law Against War

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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).