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!
national security
Canada’s ‘Royal Prerogative’ Allows it to Wage War Without Parliamentary Approval
(Published in The Conversation, Oct. 24, 2022).
Questions are being raised again about how the Canadian government makes decisions to use force or participate in armed conflicts, prompted by reports that special forces units of the Canadian Armed Forces were operating on the ground in Ukraine.
While ostensibly deployed strictly for “training purposes,” such involvement can lead to more direct engagement in an armed conflict.
The decision to engage in armed conflict is one of the most consequential decisions a government can make. Who is involved in the decision-making, and what conditions or principles govern that process? Even more importantly, how should these decisions be made?
As a recent report suggests, the Ukrainian deployment has rekindled interest in these questions on Parliament Hill. But there should be a broader public discussion and debate.
Most Canadians would be surprised to learn that the prime minister and the cabinet have a far more unfettered power under the so-called royal prerogative to take the country to war than most other western democracies.
Early limits on war-waging powers
The modern idea that the power of the executive branch to wage war should be limited can be traced back at least as far as the Glorious Revolution in 1688, when English parliament placed constraints on the king’s ability to raise and maintain an army.
Climate Change as a Security Issue at ABILA
It was a real pleasure to moderate and speak on a panel at the American Branch of the International Law Association (ABILA) in New York City in October, on the issue of how theclimate change crisis implicates various issues relating to international peace and security in international law. Joined by Mark Nevitt of Emory Law, Myram Jamshidi of the Univ. of Florida Law, and Jaya Ramji Nogales of Temple Univ. Law, it was such a rich discussion. My own presentation was based in large part on the short essay on this topic published a couple months earlier in AJILUnbound!
Climate Change and Global Security: Framing an Existential Threat
(Published in American Journal of International Law: Unbound, Aug. 15, 2022).
Abstract: Should the climate change crisis be framed in security terms? Many argue that it is dangerous to treat non-military threats as security issues. Such “securitization” is associated with the expansion of executive power and the exercise of exceptional measures involving the suspension of individual rights, secrecy, state violence, and a weakening of the rule of law. Nonetheless, climate change has already been identified as a security issue by many government agencies and international institutions. But, as Benton Heath explores in “Making Sense of Security,” the very concept of security is both ambiguous and contested. There are different and competing ideas about what it means, when and by whom it should be invoked, the kinds of law and policy responses it should trigger, and, crucially, who gets to decide these questions.
Heath argues that differing approaches to security reflect deeper struggles over whose knowledge matters in identifying and responding to security threats. He develops a typology for assessing these different approaches, and the implications they have for international law and institutions. But, while he notes that climate change is precisely one of those issues around which there are competing security claims, he leaves to others the question of whether, or how, to frame climate change in security terms.
This essay takes up that question, continuing the inquiry into how best to understand the concept of security, and how Heath’s typology helps think about the question. It argues that it may indeed be important to frame climate change in security terms, but as a matter of global security rather than national security.