JIB/JAB Podcast

Harold Hongju Koh of Yale Law School discusses his new book, The National Security Constitution for the 21st Century, which examines the structural and systemic reasons for the dangerously increased strength of the executive branch of government in the U.S., and its implications for American use of force, foreign relations, and international law. We discuss not only the evolution and implications of these systemic failures, but also his recommendations for reform, and the role of lawyers and legal scholars in responding to the problem, and even revisit his own role in government in the context of these issues. Finally, we discuss how a second Trump administration makes the prospect of reform more difficult, and the outlook for international law more fraught - but ultimately we end on an optimistic and even inspiring note. As always, for links to his biography and all the materials referenced, check our website at: https://jibjabpodcast.com

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.