JIB/JAB Podcast

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. For links to bios and all materials referenced, check our website at: https://jibjabpodcast.com

A conversation with Professors Ingrid Brunk of Vanderbilt University Law School and Monica Hakimi of Columbia University Law School, about their forthcoming article on the prohibitions against annexations - a prohibition that is related to and often conflated with the prohibition agains the use of force, but which is distinct and important. We discuss the origins and operation of the principle, what the theoretical and practical implications it has for the jus ad bellum and international peace and security, how it is under threat and what the ramifications of that are - a fascinating discussion about an important piece of scholarship. For more info, see our website, at: https://jibjabpodcast.com

In a cross-posted episode I discuss with Jonathan Hafetz, host of the Law on Film podcast, and professor of law at Seton Hall Law School, the film "Eye in the Sky" - a 2015 film about a British and U.S. operated drone strike against al Shabaab terrorists in Kenya, which intelligently and engagingly explores the legal, ethical, philosophical, political, and strategic issues raised by the operation. We focus on and examine the film's treatment of the legal principles implicated, but also explore their relationship with some of the ethical and strategic aspects of the decision-making, and go on to place the movie in the context of some other engaging films that explore law in the context of armed conflict. For more information, including reading materials, visit our webpage at: https://jibjabpodcast.com

A round-table discussion with Professors Monika Hakimi of Columbia Law School, Adil Haque of Rutgers Law School, and Marko Milanovic of Reading Univ. School of Law, on the question of whether Israel has a right of self-defense under Article 51 of the U.N. Charter in response to the Hamas attacks on October 7. The incident raises, and we explore, important questions about the scope of the prohibition on the use of force in Art. 2(4) of the U.N. Charter and its relationship with the right of self-defense under Art. 51 - does the prohibition apply to action against non-state actors in occupied territory, and if not does Art. 51 operate? And is there a right of self-defense against non-state actors at all?. We also discuss how the status of Gaza and whether it is part of a state of Palestine alters the analysis, as well as whether and how the right of self-determination relates to the jus ad bellum regime in this context, and how the principle of proportionality in the doctrine of self-defense should best be interpreted in this context. It is a fascinating discussion with some of the foremost experts in the field. For more information and links to the readings referred to, visit our website at: https://jibjabpodcast.com.

A discussion with Tom Dannenbaum, a professor of international law at The Fletcher School at Tufts University, on his work on the war crime of starvation. We delve into the proper interpretation of the IHL prohibition on starvation as a method of warfare, and the war crime of intentionally using starvation of civilians as a method of warfare in the Rome Statute of the ICC, considering what precisely constitutes the criminal act, and what exactly is the nature of the wrong that the crime seeks to address. We go on to discuss how this should inform our understanding of the Israeli siege of Gaza. For more info and links to the materials, visit our website at: https://jibjabpodcast.com

A discussion with 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 explains his novel taxonomy for the principle of necessity, and how the relationship among necessity, proportionality, and imminence should be properly understood, and we delve into some of the potentially controversial claims he makes, on how necessity operates as a limiting principle, where the gravity threshold should be for for armed attack, 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 should be considered so heavily in thinking about custom, and so much more! A fascinating conversation. For more info and links, visit our webpage: https://jibjabpodcast.com

A conversation with René Provost, professor of law at McGill University, Faculty of Law, in Montreal, about his recent 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. We discuss how he assesses the legality of insurgents' administration of justice, how the very idea of rebel courts challenges many conceptions of law and justice, and the ways in which rebel administration of justice actually conforms to many aspects of the rule of law. It is a fascinating discussion that ranges from legal anthropology and legal theory to certain technical aspects of IHL and human rights law. For more info and links, visit our webpage: https://jibjabpodcast.com

A conversation with Boyd van Dijk, currently a McKenzie Fellow at the University of Melbourne in Australia, about his new book, Preparing for War: The Making of the Geneva Conventions. 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 delegations, 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! For more info, visit our website at: https://jibjabpodcast.com

A conversation with Leila Sada, Professor of Law at Washington University School of Law in St. Louis, United States, and special advisor on crimes against humanity to the Prosecutor of the ICC. We discuss the decade long effort to establish a new international convention to prohibit and punish crimes against humanity, the role and limitations of the ICC in governing crimes against humanity, the relationship between genocide and crimes against humanity, and a number of other related issues - a fascinating discussion! For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

A conversation with Dr. Chile Eboe-Osuji, former President of the ICC and Distinguished International Jurist at the Lincoln Alexander School of Law, Toronto Metropolitan University in Canada. We discuss why the ICC cannot prosecute the crime of aggression in Ukraine and what the better alternatives might be, the jurisdiction and immunity issues that might arise, how other war crimes should be prosecuted, and how the war might provide an impetus for amending the Rome Statute, establishing a right to peace, restoring the jus ad bellum regime, and strengthening international criminal justice. A fascinating and wide-ranging discussion! For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

A conversation with David Sloss, Professor of Law at the University of Santa Clara, about his new book, "Tyrants on Twitter: Protecting Democracies from Information Warfare." We discuss the recent history Russian and Chinese exploitation of social media, and explore the strategic and geopolitical implications of allowing these countries engage in this "warfare by other means" to undermine democracies around the world. We examine David's law and policy proposal for how democracies might combat this form of information warfare, which includes an international agreement among democratic states to ban Russian and Chinese state agents from social media platforms, and debate some of the likely objections to his argument - including its implicit rejection of broader and more universal international law solutions and its inherent double standard, whether it distracts from several larger threats to democracy posed by social media platforms, the risk of securitizing an essentially non-military problem, and some of the more technical challenges to its implementation. A fascinating discussion! For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

A conversation about the Russian invasion of Ukraine with Professors Eliav Lieblich of Tel Aviv University, Marko Milanovic of the University of Nottingham, and Ingrid Wuerth of Vanderbilt Law School. We focus on how we should be thinking about the implications of this war for the jus ad bellum regime and the collective security system going forward. While the invasion is clearly an unlawful and egregious act of aggression, have unlawful uses of force by Western states served to weaken the legal regime? Has our focus on humanitarian issues and human rights law weakened the system? Is this war a failure of the collective security system, and are the wrong lessons being drawn, particularly for nuclear non-proliferation? How should we try to restore the order going forward? A fascinating discussion about vital issues. For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

A conversation with Sam Moyn, Professor of Jurisprudence at Yale Law School and Professor of History at Yale University. We discuss his recent and acclaimed book "Humane," which, drawing on an insight of Leo Tolstoy, argues that as the United States has come to focus on humanizing armed conflict in the last few decades, its interest in constraining the incidence of war has declined. We discuss the historical accounts that form the core premises of this argument, and dig into the nature and implications of the inverse relationship that forms the center of his argument. As the invasion of Ukraine begins, his argument that we have lost sight of the importance of preventing war is that much more urgent. A fascinating discussion about a provocative book that will leave you with a lot of food for thought! For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

A conversation with Olivier Corten, Professor of International Law at the Free University of Brussels in Belgium, about the recently published 2nd edition of his book "The Law Against War." Our discussion ranges from the differing methodological approaches to the international law on the use of force, the threshold for what constitutes a use of force, the scope and operation of the doctrine of self-defense, the proper understanding of the principle of necessity, the validity of anticipatory self-defense, how the law on use of force applies to actions against non-state actors, cyber operations, and much more! For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

A conversation with Aslı Bâli, Professor of Law at UCLA in the United States, on the lawfulness of comprehensive autonomous economic sanctions, and the relationship they may have with the laws of war. Economic sanctions can cause the kind of humanitarian harm and economic disruption that could be unlawful under IHL, or constitute a prohibited use of force if caused by cyber operations or naval blockade, and are also potentially in violation of human rights law - so why are they so often considered a legitimate and benign alternative to the use of force? We explore in a fascinating conversation! For more info and links to materials referred to, visit our website: https://jibjabpodcast.com

Discussion with Judge Chile Eboe-Osuji, who's terms as Judge and President of the ICC ended recently, on his role in the development of the ICC, and on some of the criticisms of the Court. We examine the meaning of "attack" in the Rome Statute through the lens of the Ntaganda case, and the relationship between so-called Hague Law and Geneva Law, and between war crimes and crimes against humanity, 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! For links to materials discussed, see our website: https://jibjabpodcast.com

A panel discussion ofthe 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 conversation 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 of 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, it examines the extent to which IDF actions complied with the principles of distinction, proportionality, and precautions in attack, and debates 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. For links to the materials discussed, visit our website: https://jibjabpodcast.com

A conversation 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! For materials discussed, visit our website: https://jibjabpodcast.com

A conversation with Yasuyuki Yoshida, Professor of International Law at Takaoka University in Toyama Japan, and former Capt.(N) in the Japanese Maritime Self-Defence Force, discusses 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 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, but in 2014 the government "reinterpreted" it to relax its constraints. We discuss how the new policy relates to the jus ad bellum. 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. Fascinating conversation! For the materials discussed, visit our website at: https://jibjabpodcast.com

A conversation 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! For links to materials and reading recommendations, visit our website at: https://jibjabpodcast.com.