armed conflict

Discussing Autonomous Weapons Systems and IHL at Case Western Law

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Case Western University School of Law’s annual international law symposium this year focused on the question of whether the Geneva Conventions, enjoying their 75th Anniversary, need to be updated to deal with new challenges, including the application of IHL to space, expanding transnational conflicts with non-state actors, cyber-war, and the development and deployment of fully autonomous weapons systems. The conference began with a closed experts group meeting to discuss the development of a white paper on the issues, followed by an open conference with panels on each of the major topics.

My panel, with Laurie Blank of Emory Univ. Law, Milena Sterio of Cleveland Univ. Law, and Romina Morello of the ICRC, fielded questions from Paul Williams of American Univ. Law, on whether, and how, the Geneva Conventions might need to be updated in some form to better regulate the use of autonomous weapons systems. My article on the subject will be published next year in the Case Western Journal of International Law. Great conference.

Canada’s ‘Royal Prerogative’ Allows it to Wage War Without Parliamentary Approval

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(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.

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What was the International Legal Basis for the Strike on al-Zawahiri?

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(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.

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Climate Wars and Jus ad Bellum (Parts I & II)

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(Published in Opinio Juris in two parts, Aug. 13, 2020).

Part I

In this year of cascading crises, the climate change crisis is slipping off the radar. Not only that, but the Coronavirus pandemic and the resulting economic crisis are likely to interfere with both our will and our ability to respond to the climate change crisis. And yet, as many others have noted, there are many similarities between the pandemic and the climate change crisis, and there are lessons to be drawn from the pandemic in how we think about responding to climate change.

In this two-part essay I want to focus on how these crises implicate overlooked national security issues. More specifically, I examine how the climate change crisis will increasingly come to be seen in national security terms, and why we need to start thinking about how it will affect international collective security systems. As I have explored in a recent article (Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime), the climate change crisis will begin to exert pressure for changes to the jus ad bellum regime, and now is the time for us to begin considering and discussing how best to respond to that pressure.

In Part I of this essay I examine how excessive state contributions to climate change will come to be viewed as threats to international peace and security justifying collective action, and I examine in Part II how the jus ad bellum will be implicated, and why we need to begin now addressing the problems this will create.

Reframing Security

This is not merely about the crisis becoming securitized, but also about it causing a reframing of security. The Coronavirus crisis already has many people questioning the scope and focus of our national security efforts and expenditure, and re-framing national security in terms of human security. The threat of a flu-like pandemic was not only foreseeable, but was explicitly predicted not long after the SARS epidemic in 2003, and yet largely because the U.S. ignored the threat and was woefully unprepared, the pandemic has already killed over 160,000 people, and is projected to kill another 150,000 before the end of the year. Tens of thousands of those deaths were caused by inadequate preparation and response.

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