war

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 34 – Chris O’Meara on Necessity and Proportionality

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In this episode I speak Chris O’Meara, Lecturer at Exeter University Law School, about his new book, Necessity and Proportionality and the Right of Self-Defence in International Law. Chris describes his novel taxonomy for dividing the principle of necessity between general and specific necessity, and his blending the quantitative and teleological approaches to the principle of proportionality, and goes on to explain how the relationship among necessity, proportionality, and imminence should be properly understood. We delve into some of the more potentially controversial claims he makes, such as: on how he thinks necessity operates as a limiting principle; why the gravity threshold for armed attack should be lowered; whether the principles of self-defence are modified in responses to non-state actors; why the assertions and actions of a minority of powerful states, particularly in relation to clearly unlawful uses of force, and the corresponding silence of other states, should be considered so heavily in thinking about custom – and so much more! A fascinating conversation.

Materials:

– Necessity and Proportionality and the Right of Self-Defence in International Law (2021).

– “The Relationship Between National, Unit and Personal Self-Defence in International Law: Bridging the Disconnect,” 4 Journal on the Use of Force and International Law 273 (2017).

– “Reconceptualizing the Right of Self-Defence Against Imminent Armed Attacks,” 9 Journal on the Use of Force and International Law 278 (2022).

Recommended Reading:

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

– Tom Ruys et al., The Use of Force in International Law: A Case-Based Approach (2018);

– Jay Kristoff, Nevernight (2016).

Episode 33 – René Provost on Rebel Courts

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In this episode I speak with René Provost, professor of law at McGill University Faculty of Law in Montreal. We talk about his recent and widely acclaimed book, Rebel Courts: The Administration of Justice by Armed Insurgents. We discuss the methodology he employed in researching this deep and rich ethnography of rebel courts, in conflicts ranging from Afghanistan, Iraq, and Syria, to Sri Lanka, Colombia, and the DRC, and some of the significant challenges and risks that such research entailed. From there we dive into how he assesses the legality and validity of the administration of justice by armed groups, and how the very idea of rebel courts challenges many state-centered conceptions of law and justice and the rule of law, which in turn takes us into an exploration of legal pluralism and meaning of the rule of law itself. We also delve into a number interpretive issues surrounding the meaning of “regularly constituted courts” in IHL, and the paradox of states requiring armed groups to comply with and implement IHL while rejecting their attempts to administer justice in the process. All in all, it is a fascinating discussion that ranges from legal anthropology and legal theory to certain technical aspects of IHL and human rights law.

Materials:

– Rebel Courts: The Administration of Justice by Armed Insurgents.

Recommended Reading:

– Stuart Elden, The Birth of Territory (2013);

– Martti Koskeneimmi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001);

– Sarah M.H. Nouwen, Complimentarity in the Line of Fire: The Catalyzing Effect of the International Criminal Court in Uganda and Sudan (2013).

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).

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 24 – Judge Chile Eboe-Osuji on the ICC, the Concept of “Attack,” and More

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In this episode, I speak with Judge Chile Eboe-Osuji, Judge and President of the ICC until he stepped down earlier this year. He served as Judge on the ICC for almost ten years, and was President of the Court for three. Prior to that he was Legal Advisor to the UNHCR, and before that, a prosecutor at the International Criminal Tribunal for Rwanda. Orignally from Nigera, Judge Eboe-Osuji is a Canadian, and he practiced law in Toronto prior to his international law career. He is soon to take up a new position at the Lincoln Alexander School of Law at Ryerson University in Toronto. In our conversation Judge Eboe-Osuji reflects on his role in the development of the ICC, and some of the criticisms of the Court, before turning to a more detailed discussion of the meaning of the term “directing attacks” in the Rome Statute, through the lens of the Ntaganda case. This leads to a discussion of the relationship between so-called Hague Law and Geneva Law in IHL, and between war crimes and crimes against humanity within the Rome Statute, all within the context of the object and purpose of IHL, and the need for intelligibility and accessibility as a fundamental component of the rule of law – fascinating discussion!

Materials:

– The Prosecutor v. Bosco Ntaganda, Appeal Chamber Decision, Mar. 30, 2021.

– The Prosecutor v. Bosco Ntaganda, Trial Chamber Decision, Jul 28, 2019.

– Abhimanyu George Jain, “The Ntaganda Appeal Judgement and the Meaning of “Attack” in the Conduct of Hostilities War Crimes,” EJILTalk!, Apr. 2, 2021.

– Ronald Acala and Sasha Radin, “Symposium Intro: The ICC Considers the Definition of ‘Attack.'” Articles of War, Oct. 27, 2020.

Reading Recommendations:

– Stanley Milgram, Obedience to Authority: An Experimental View (1969).

– Hannah Arendt, Eichmann in Jerusalem: The Banality of Evil (1963).

– Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (2017).

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 20 – Rebecca Ingber on Legally Sliding into War

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In this episode I speak with Rebecca Ingber, Professor of Law at Yeshiva University’s Cardozo School of Law, and formerly a lawyer in the Office of Legal Advisor in the U.S. Department of State. We discuss a recent essay in which Rebecca examines how international and domestic law operate together to facilitate the incremental moves by which the U.S. initiates, expands, and extends armed conflicts. The process involves legal justifications and rationales for each step towards war, with legal interpretations that, while made in good faith, are often strained and even beyond the pale. What is more, Congress and the courts tend to look to the international law principles as limitations on executive branch conduct, but then there is little check on how the executive branch lawyers interpret and expands such principles — and all of this focus on legal justification displaces a necessary and deeper policy analysis of the reasons for engaging in armed conflict. In exploring these issues, we also talk about whether legal scholars are fulfilling their role of keeping the government honest in its interpretation of international law, where exactly within the government such decisions get made, and why and how different areas of law get conflated and confused in the justifications for war!

Materials:

– “Legally Sliding Into War,” Just Security, Mar. 15, 2021.

– “International Law as Executive Power,” 57 Harvard Int’l Law J. (2016).

Recommended Reading:

– David Luban, “Complicity and Lesser Evils: A Tale of Two Lawyers,” Georgetown J. Legal Ethics, (forthcoming, 2021).

– Monica Hakimi, “The Jus ad Bellum‘s Regulatory Form,” 112 American J. Int’l L. 151 (2018) [See Episode 6!].

– E. M. Forester, The Machine Stops (1909).