JIB/JAB Podcast

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.

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.

Terry Gill, a professor of international law and military law, discusses self-defense against non-state actors. He explores necessity as the key test, challenges the automatic use of the unwilling-or-unable idea, and revisits Nicaragua and attribution debates. The conversation covers imminence, alternatives to force, evidence obligations, and limits on broad justifications for extraterritorial strikes.

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. For more info on the episode and for links to the related material, visit http://jibjabpodcast.com

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. For more info on the episode and for links to the related material, visit http://jibjabpodcast.com

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. For more info on the episode and for links to the related material, visit http://jibjabpodcast.com.