JIB/JAB Podcast

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.

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: http://jibjabpodcast.com.

A conversation with Sarah Holewinski, the Washington Director at Human Rights Watch, and formerly the Director of CIVIC (Civilians in Conflict). In between those two roles she served under then U.S. Ambassador to the United Nations, Samantha Power, and as special advisor on human rights in the Chairman's Office of the Joint Staff in the Department of Defense. We begin by discussing an essay Sarah published in Foreign Affairs in 2013, in which she argued that the U.S. could do much more to mitigate harm to civilians in the armed conflicts in Afghanistan and Iraq, and that it had ethical and strategically self-interested reasons for doing so. She revisited the issue in a very recent blog post in Just Security, in which she argued that little has changed. Drawing on her experience in the Pentagon, we explore how and why the U.S. has failed to establish either formal policy or leadership positions within DoD to ensure greater protection for civilians; as well as why there is a tendency in the military to deny any and all claims of civilian harm, and a general failure to adequately investigate such claims or accept outside evidence in support of them. Finally, we discuss a simulation that she designed which revealed a rather disturbing tendency on the part of government officials to take positions on issues that they thought were expected of their role, rather than positions that they thought were right. For links to materials and reading recommendations, visit our website at: http://jibjabpodcast.com.

A conversation with Mary Ellen O'Connell, of the University of Notre Dame Law School. We discuss her recent focus on that the concept of "imminence" and the doctrine of self-defense in international law, through the lens of the killing of Iranian General Qassim Soleimani. Starting with just war theory and the natural law foundations of international law, right through to the text and intent of the UN Charter and current state practice, O'Connell argues that anticipatory self-defense is not lawful, that the concept of imminence has no place in the doctrine of self-defense, and moreover that it has undermined the narrow exceptions to the prohibition on the use of force. In doing so, however, she makes a broader argument that our approach to security must be more holistic and comprehensive, and it should reject the purely realist and positivist assumptions that have driven recent policy. For materials and reading recommendations, see: http://jibjabpodcast.com

Guest host Jasmin Nessa of Liverpool University Law School interviews Craig Martin of Washburn University School of Law on how the climate change crisis is likely to implicate the laws of war. In particular, Martin argues that as the crisis deepens, and not only the consequences but the causes of climate change are viewed as threats to national 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." These arguments will be persuasive but dangerous, not only increasing the incidence of war, but also being counterproductive to the climate change crisis efforts -- and so we must begin to discuss the issues now, before the pressure mounts. For more info on the episode and for links to the related material, visit http://jibjabpodcast.com.

A conversation with Prof. Terry Gill of the University of Amsterdam, Center for International Law, on the use of force in self-defense against non-state actors (NSAs), within the territory of states that exercise no control over the NSA but which do not consent to the use of force - a familiar but hot subject of debate. We discuss Terry's recent work, which places the principle of necessity at the center of the analysis of these issues, and thus offers some different perspectives on the so-called unwilling or unable doctrine, and we also revisit his earliest work on the Nicaragua v. USA judgment of the ICJ. For more info on the episode and for links to the related material, visit http://jibjabpodcast.com.

A conversation with Prof. Michael Schmitt, Professor of Law at the University of Reading, the United States Military Academy at West Point, and the U.S. Naval War College, on the development of international law relating to cyber operations, and the recent state declarations on how the jus ad bellum and international humanitarian law apply to cyber ops. We discuss some of the problems and issues raised by trying to adapt these legal regimes in order to govern cyber ops effectively, and the threat that such efforts may pose to the integrity of the legal regimes themselves.

A conversation with Prof. Federica Paddeu of Cambridge University in England, 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 prohibition on the use of force itself? 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 and battery. The answer to the question has important implications for how we think about and understand the use of force itself, as well as for the operation of the justification in practice.

A conversation with Prof. Douglas Guilfoyle of the University of New South Wales, Canberra, on the Inquiry of the Inspector-General of the Australian Defence Force into alleged war crimes committed by Australian Special Forces in Afghanistan, delving into the nature of the offenses, issues of command responsibility, structural and cultural causes of the misconduct, and the influence of the Rome Statute and the ICC in Australia's actions

A conversation with Prof. Tom Ruys of Ghent University, in which we re-examine the positions he took in his famous book on armed attack and self-defense, and then discuss the debate he has recently sparked around the question of whether states may use force in self-defense to recover occupied territory, looking specifically at whether Azerbaijan could justify its recent seizure of Nagorno-Karabakh as a valid exercise of self-defense. Finally, we also talk about the relationship between economic sanctions and the collective security regime.

A conversation with Dr. Catherine O'Rourke of Ulster University School of Law in Northern Ireland, on her new book, "The Rights of Women in Armed Conflict Under International Law." We discuss how four distinct regimes, IHL, international criminal law, human rights law, and the UN Security Council, interact, in both theory and practice, in the protection of women's rights in armed conflict, assessing the strengths and weaknesses of the various regimes, and whether the synergies and mutual support among the regimes outweigh the conflicts and gaps that they create in the legal protections for women in armed conflict. A tour de force.

A conversation with Prof. Eliav Lieblich of Tel Aviv University, in which he takes a recent UN Human Rights Committee General Comment, as a point of departure for analyzing the relatively unexplored relationship between international human rights law and the legal regime that governs the state use of force. Does an act of aggression by a state infringe human rights law as well as violate the jus ad bellum regime? Do governments contemplating the use of force in self-defense have to consider human rights obligations to its own citizens, and those of the state against which it is using force? Fascinating questions with important implications, examined from a doctrinal, theoretical, and philosophical perspective.

A conversation with Prof. Oona Hathaway of Yale Law School on the theory and practice of the domestic law constraints on the use of force, including the different ways in which the War Powers Resolution in the U.S. could and should be amended, the relationship between war powers and international law, and how Congress could reassert its powers over decisions to engage in armed conflict. In addition, we talk about how crises such as the Coronavirus pandemic and climate change, should cause us to re-think the scope and character of national security priorities and policy.

A conversation with Prof. Craig Forcese of the University of Ottawa on his book "Destroying the Caroline," in which we discuss the history of the Caroline Incident, how and why it influenced the development of the doctrine of self-defense, what that says about international law itself, and how the Caroline Incident is used and abused in current debates around such issues as anticipatory self-defense and the unwilling or unable doctrine. We also talk briefly about Canadian national security law, and how it compares to that of other countries.

A conversation with Prof. Alonso Gurmendi Dunkelberg of Universidad del Pacifico, on Latin American approaches to jus ad bellum and non-intervention - ranging from the origins and development of Latin American thinking in the 19th Century, through the under-appreciated importance of the Montevideo Convention, to how one should interpret Latin American responses to recent uses of force and interventions.

A conversation with Prof. Monica Hakimi of the University of Michigan Law School, on how the U.N. Security Council's tacit support for state use of force that would otherwise be unlawful, should be understood as being an "informal regulation" that modifies the standard rules of the jus ad bellum regime. The conversation explores case studies, normative implications of the argument, and whether it is consistent with the rule of law.

A conversation with Prof. Eric Talbot Jensen of Brigham Young University Law School - Jensen argues that the law of armed conflict does not require human judgment in making targeting decisions, and thus fully autonomous weapons are not per se unlawful, and that research and development of such weapons should not be prohibited. We explore whether ethical considerations should nonetheless affect decisions to develop machines programmed to kill humans.

A conversation with Prof. Ashley Deeks of the University of Virginia School of Law - Deeks explains how AI and machine learning may implicate the laws of war, from assisting states in decisions on the use of force and self-defense, to increasing compliance with the law of armed conflict on the battlefield, and even the coding of the IHL rules and principles into the AI systems operating or interfacing with weapons systems.

A conversation with Prof. Adil Haque of Rutgers Law School - Haque explains how a review of the negotiating history for the UN Charter suggests a relationship among the prohibition on the use of force, self-defense, and acts of aggression, that is quite different from current views, with important implications for a number of aspects of the doctrine of self-defense, including anticipatory self-defense, the nature of armed attack, and the role of the security council.

A conversation with Prof. Kevin Heller of the University of Copenhagen about unilateral humanitarian intervention - Heller argues that it is not only unlawful, and should remain so, but that it may actually constitute an act of aggression as defined under the Rome Statute, and that its perpetrators could, theoretically, be charged for the crime of aggression. See website for reading material.

Craig Martin, the host of the podcast, explains the objectives, scope, and format of this podcast series, and then goes on to provide a brief overview of the main legal regimes that comprise the "laws of war," principally the jus ad bellum and the jus in bello regimes, and how they relate to one another. Visit the website for more info.