In the latest episode of JIB/JAB-The Laws of War Podcast, I have a cross-posted episode in which I am the guest of Jonathan Hafetz on his Law and Film Podcast to discuss the film Eye in the Sky. It is 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!
IHL/LOAC
JIB/JAB-The Laws of War Podcast Back On-Line
It was good to get JIB/JAB-The Laws of War Podcast back on-line after an almost 7 month hiatus! Started the new season with a fantastic new episode on the issues of sieges, the war crime of starvation, and the siege of Gaza, with Tom Dannenbaum of the Fletcher School of Law & Diplomacy at Tufts University. The podcast has now been listened to almost 44,000 times in over 120 countries, so it feels like it is worth continuing, notwithstanding how much work it is!
Speaking to the CBC on the Gaza Conflict
I was pleased that the media is reaching out to international law scholars to get explanations of the legal issues raised by the conflict in Gaza, and was happy to speak with the CBC’s Canada Tonight show on the topic despite how fraught the issues are, but I found it difficult to provide the necessary nuance or really explain the complexity of any of these issues in the short time provided. It is pity that there is not sufficient time to lay out the issues in a little more depth and sophistication. Some other media, such as Ali Velshi’s spot on MSNBC, have taken a little more time with experts to explain some of these issues more fully. It is important for the public to understand these issues better.
What was the International Legal Basis for the Strike on al-Zawahiri?
(Published in Just Security, Aug. 9, 2022)
The killing of al-Qaeda leader Ayman al-Zawahiri in a CIA drone strike has been touted as a political win for President Joe Biden, a vindication for an over-the-horizon counter-terrorism strategy, and even as “justice served.” Yet there appears to be little interest in whether it was lawful. The media has not seriously raised the question, the punditry has not addressed it, and the government has not yet provided any official legal basis for the killing (to be fair, some law and policy blogs, such as Lawfare, Just Security, and Articles of War, have begun to address it). This disregard is problematic, as there are indeed serious questions as to the lawfulness of this strike – and people should be demanding answers.
Let us acknowledge up front that Ayman al-Zawahiri was the second-in-command of al-Qaeda at the time of the 9/11 terrorist attacks on the United States – which were heinous crimes, terrorist acts, and amounted to an “armed attack” against the United States under international law.
Nevertheless, his killing some 21 years later requires a legal justification under international law. What is more, the drone strike also constituted a use of force against Afghanistan, with which the United States is no longer engaged in an armed conflict – and so that too requires legal justification. This essay briefly reviews the international law regimes that are implicated (leaving aside entirely the domestic law considerations, such as the 2001 Authorization for Use of Military Force), and some of the questions regarding the lawfulness of the strike that arise under each regime – and argues that these questions are important.