Okay, perfect. That will then appear on our channel. So, do you have any other questions or? No, I think I can run it as usual. You know, go to the Q&A. Lizzie, I have to do a training for that. Sorry, I was trying to find the webinar and I couldn't find.  No, no, we just need to sit down for five minutes and I'll show you something. All right then. Have a good one. Bye-bye. Thank you very much. Lizzie, do I have to do anything or just? You just need to start the webinar. Maria, can you hear me? Yes, yes. Is that okay with you? Yeah, can I just check the share screen function that it works properly when I? Yeah, can you just, it says all the panelists, can you share? Yeah, I can. Let me just try to... And Hal, how are you? Yes, perfect. Okay, all right. Yeah. First of all, guys, thank you very much. I know that became a bit of a going back and forth, going back and forth. I know how busy you are. I really, really appreciate. I know that you have both to leave earlier, right? Now, Hal, before three, am I right? Oh yeah, I've got to jump into another meeting at three, I'm afraid. Sorry about that. No, no, no, no. But thank you so much. That's why I started earlier, you know.  We don't have to go up to 3.15. We can finish before, you know, depending on the discussion. And take it from there. How are you? Everybody seems to be tired. I don't know. Or is it me that I felt so tired today? And so I can't quite remember, but could you just remind me the order of the speaker? I think you can go.    When do you leave? So I have to jump out at 3. So I've got 90 minutes. Oh, okay. Yeah, me too. Not much before the schedule is done, but. Okay. And I think, you know, the rest, I know, I don't know if Fred will join before or if Christian has to be in the second session. And I know the Vika is that, I mean, it's crazy, you know, so maybe, you know, we will start the three of us and then take it from there. Yeah. But you'll give a little introduction anyway, right? Yeah, yeah, yeah. I'm going to give the introduction, short introduction, a couple of thoughts and just finish reviewing Klapa's book, War. So, and I was watching yesterday, the Russian ambassador on BBC. He gave, I don't know if any of you had, Nahal, if you had any chance to, to watch him. There's only a limited number of atrocities I can take every day. So. Yeah, you had, you had a little bit of tension again, right? A little bit in Jerusalem, no? Yeah, I just noticed some things over there.  Yeah, yeah. So I don't know if the rest will join, sorry. But, but we can do it like that, you know, and then yeah, I couldn't, couldn't join and Emily had COVID.  Also, kind of my paper is really, really preliminary thoughts. So it's kind of like. Yeah, yeah, sure. Nahal, would you like to start first? Yeah, what, what do you prefer? I have a bit neutral. I don't mind. I mean, I'm, I'm talking a little bit about the work I'm doing on trying to think about the ways in which integrating the laws of war into AI enabled systems. Exactly. So it's, it's not especially legal in a way. It's more trying to think about the problem of the relationship between more and AI. So I don't know whether it might be a little abstract. Yeah, I don't know whether it's better to start with something more concrete. Okay, so yeah, would you like to, I mean, I will start, it will be out. But just before that, Nehal is, is it, I'm really hearing you in a low volume, was it my problem? Maria, are you okay with, do you hear Nehal? My computer microphone is not very good. I might have to put on a headset problem. Okay, I can hear you, Nehal. No, no, I'm wondering, I hear Nehal very low. He's a little bit low. Yeah, so I'm just concerned for the other participants. I think this surely is better. Okay. Is that any better? The same, so I think it's the same as well. Yeah. That's strange, actually, because usually this one has a good microphone. Okay. That's the best option that I have. Yeah, yeah, yeah. But maybe people will allow me to speak a little bit less sort of strongly.  Is that okay? You know, so, yeah. Okay, I can see the excitement. Guys, once more, thank you very, very much, really. It's good to see you even virtually. So I think I should start the seminar, you know, how it goes. We wait, I wait for a couple of seconds and then, you know, oops. Hello, Gracie.  Is it what?  Hi, Christian. It's, thank you very much. It's a joint ground, as usual. Okay. It's a joint ground. I mean, I send it around, hopefully, you know. Christian, I just said, you know, that most likely we'll finish a little bit earlier with the first session, and then we can start also, you know, depending on Fred and Devika, we can start a little bit earlier. Is that okay? We don't have to go one hour and a half for each session, you know? I mean, we will in this time, but Nehal has to leave at three. So we thought of stopping, you know, cutting it at three o'clock, and then we can restart 10 past three. Is that okay? That's fine. I have to sort of, I mean, I think I listened to Elia and Nehal. When you discuss, I may have to sort of skip briefly into a research committee meeting, but I'll be back from that as soon as I can, if only because it's very, very boring. So, it's good to see you. Thank you, Maria. Good to see you, Nehal. Good to see you. Thank you all very much. I know these are crazy hectic times, you know. I went ballistic. It's recorded already, so I shouldn't say anything. It never showed, Maria. It never showed. No, I was very subtle, you know, in my comments, you know. Yeah. Okay, so I should, we should better start. As I say, I'm going to introduce, and then I immediately give the floor to you guys, you know, and a very basic introduction to you. I don't think you need anything. Thank you once more, very, very much. Okay, so hopefully I will do, I won't mess up around with Jo, as always. So we start. Good afternoon, everyone. It's a great pleasure to welcome you to the last online roundtable we have at the War Studies Department on International Law and War. Today, I'm very happy because I'm hosting a couple of friends who happen to be leading experts in what they are doing, and I'm very grateful to all of them for participating in our roundtable. This year, the War Studies Department celebrates its 60 years of its operation. So I thought that international law should play a part in the discourse about the War Studies, within the War Studies Department. So what I thought during the last months was to ask my friends and colleagues to think about emerging or emerging things. They would like more to highlight, to set line in the broader context of war, of the concept of war. Now, what I'm going to do during the first session, of course, we will have two panelists, we'll have Professor Nehal Buddha from the University of Vandenberg and Professor Eliab Libli from Tel Aviv University Faculty of Law. And initially, I will provide a short introduction, trying to be together the pieces of the puzzle. Why do we have an online roundtable or international law and war? And then I will give the floor to my speakers and all the participants can put questions on the Q&A. Of course, Professor Christian Champs is with us. He will talk during the second term. Christian, thank you very much for being here. And after the first session, we'll have a very, very short break between three and 10 past three. And then we'll continue with the second session. So the title of this roundtable is called International Law and War, Ways of Shame. And that was my invitation to the speakers to think, how do they see some particular themes they consider intriguing or emerging or underdeveloped within the contents of international law and war? I have to say that being at the worst studies department, I'm teaching a model called International Law and War. And that motivated my interest, because I was thinking, why am I teaching a model called war instead of international law and armed conflict or something else? Yesterday, maybe some of you attended the interview of the Russian ambassador before the BBC who said, of course, this is not war. This is not war. This is a limited military operation or a special military operation. And we know that whoever calls it war in Russia ends up in prison for spreading false information. But what does it really matter to call it war instead of military, special military operation or an armed conflict? What are the implications over there? So having said that, we know we international legal scholars that law, especially war, especially the concept of war since 1945, is considered to be an epithesis of international legality. Once I wrote that and a colleague from another discipline told me, how could you say that war exists? And it's true that we have war, the concept of war in the reality of international law in other subfields. We talk about international humanitarian law, the laws of war. We talk about international criminal law and we talk about war crimes. We talk about the protection of human rights in peace and war times and not only. Hi, Fred, it's good to welcome you in our session as well. So what are the implications of war and why do we go back to the concept of war? Here I would like to highlight two aspects. First of all, we have seen the language of war being used by almost everyone. And I'm not talking about the last three months I'm talking before. We have political leaders and laymen claiming all the time that we are at war, whether it was the war on terror or the war against poverty. Of course, there they didn't show the same passion about war or when we talk lately about we are at war against climate change. And more recently, we are at war with COVID. We saw this statement by many leaders, from President Macron to other leaders. What does that imply? It implies it provides a kind of carte blanche to political leaders to declare states of emergencies, whether we talk about de facto or de jure. It gives them this necessity for the abnormal, for the exceptional, for the particular challenges that they have to divert, normality. It gives them more power and we have seen that in many respects. One characteristic example is the European Union and the discourse we had, the war discourse again when asylum seekers and migrants tried to enter the European Union from Belarus. There we heard again from senior political officers claiming that we are at war. The European Union is at war. Of course, when people started asking, what does it apply legally? So if you are at war, should you exercise in all self-defense? Are you are on top? Against who should you exercise this self-defense? It became more problematic. However, the concept and the mentality and this sensibility of war was very much widespread because when you say you are at war, you, more or less, you operate under a Schmittian reality. You have an enemy and that rallies people around this enemy that gives more power to the sovereign to decide on behalf of you because we are at war. This is an exceptionality. So setting aside this language of war which is very problematic and we will see it again and again, it's also very interesting because we see the concept of war as a legal concept that remains very, very persistent. And I just said, I talked to my colleagues before and they say, I just reviewed the recent book by Andrew Clapham on war, where Andrew claims that we should outlaw, that since war, the concept of war, the institutional concept of war as sorry, the concept of war as an institutional concept has been outlawed since 1945. It doesn't make any sense to keep intact particular belligerent rights. So since we outlawed war in 1945, why do we keep this remnants before 1945? We're in a different logic. In this book and I think it's very, very, it's very intriguing because he pushes the agenda. He makes a very strong normative argument against the concept of war, even criticizing the just war theory that is part of the problem because the just war theory justified some kinds of killings where he has Andrew Clapham says that it doesn't make sense to me, it's a paradox over there and he talks about war with a capital letter and war with a small letter after 1945. We see that legally speaking, the concept of war has some impact because in many constitutions domestically, you know, you need to have a proper declaration, a state of war. We have seen that very much with the United States, but also in other domestic spheres being in a state of war, legally speaking means, for example, implies particular rights and obligations of the citizen of this state. So the concept of war legally speaking is there and what Andrew Clapham claims in this book is that this concept of legal war, it's a state of mind. It's a state of mind that actually contributes, facilitates further loosening of fundamental principles such as the principle of proportionality or contributes, for example, into enhancing further killing or further detention or further expropriation of property. I would say that all these things have become very, very interesting and not interesting relevant the last years and more relevant the last three months. Now, the second point I would like to highlight here before I stop, no, I have three points and I think this is very much related to the work of some like Nehal's work, is that we keep talking about new types of warfare, we talk about new technologies, we all know that we talk about hybrid warfare and the main question is to what extent the old rules of international law are still relevant? How can we adapt them? How can we use them? Do we need more rules? Is it at the end of the day a matter of law or it's more another matter, especially when we talk about artificial intelligence, for example, is it purely a matter of law or we are talking about basically morality and ethics? However, here I would like to say that although we focus so much on new warfare and new types of war and we have so much discussion, what we have seen during the three months and maybe other participants can also spot that is I feel that we go back to the basics. I think the basics have been always there. I was surprised, but I'm not a military person, I was surprised to see a ground military invasion on 21st century on the territory of Ukraine. Everybody was talking about cyber warfare, hybrid warfare, of course that doesn't mean that we didn't have incidents of cyber warfare and then we saw that we went back to the basics, we had to re-read doctrine, we had to analyze doctrine, we had to clarify doctrine. Here though, during the last years and months, we have seen a lot of scholars from a historical perspective and I think Fred will contribute with his intervention here, where to some extent demystifies is, you know, some if I would say of the myths we had about the creation of international humanitarian law about the rules of war, I'm talking about the work of a Yalbe Meniste, recent books related to making war, so we are going to see actually to what extent, you know, this rosy picture some of us might had about the rules, the conduct of warfare, where reflective of reality and where do we stand today. And the third point I'm going to make and I'm going to stop there in order to give immediately the floor to Nehal and Elia, it's very much related to the work I'm doing and it's about the responsibility we have as international teachers, scholars and legal advisors. So I have seen and I share this sometimes disappointment, sometimes I would even say cynicism about the role of international law, does it really matter, we are talking about the indeterminacy, we all know about that, we saw the use and abuse, and then I wonder, you know, how can we teach international humanitarian law, how can we teach the prohibition and use of force, how can we avoid cynicism and be critical, what kind of message can we convey, maybe it's a bit of a patronizing, definitely it is patronizing, but I think there is a kind of responsibility that we have when we enter a classroom and we talk to younger people or when we provide legal advice. So this is a question actually I would like to put to all my speakers, maybe they would like to comment on that, you know, because I know that all of you teach those issues, you have written about those issues, and I hope you know that you will share your thoughts with me. So having said that, you know, this is my initial introduction and now I would like to give the floor to Ayak, would you like to take first the floor or Nahal, I don't know, it's okay, Ayak already. So thank you very much. Let me just set up here to make sure everything works. So can everybody see my presentation? Can you see my presentation? Okay. See your presentation. Sorry about that, whenever you set up Zoom, it comes up differently. Okay, so we said back to basics. So actually my talk is back to basics in terms of dealing with really basic issues of war. So as you see my the title, well first of all, thanks everyone for attending and Maria for organizing. And I will speak about recourse to force to recover occupied territories and the justification for self-defense. And it's pretty, the initial stages of thinking about this problem, but I'm really kind of curious and confused where this question is taking us, so I would be happy to get your input. So I will begin by really discussing the problem. I will mention the ongoing doctrinal debate about this question. I'll try to kind of put it in a theoretical context and then try to really in a preliminary way think about, okay, how do we understand law under this competing normative intuitions that we might have about this question? Okay, so let's begin with the problem, right? So imagine that A, an aggressor state occupies territory belonging to state B, and then hostilities end, but A remains in control of the territory. Now imagine that after years, maybe decades, B goes to war to recover the territory. And I call these wars wars of recovery for lack of a shorter way to label them. And doing so it kills people such as A soldiers and civilians caught as collateral damage. It also occasions harm to its own soldiers and civilians. So would such resort to force be legal or should it be legal? And Maria said back to basics. So these questions are far from theoretical nowadays. So the situation Nagorno-Karabakh was precisely this situation, the Golan Heights, Northern Cyprus, Crimea, and maybe parts of Eastern Ukraine, if Russia gets what it wants might, you know, set up this dilemma again. Okay, so this question, if we look at doctrine, and I will say a few things about it in a bit, it's inconclusive. And it was in the heart of a recent debate by leading international lawyers. And there is a permissive view that argues that passage of time alone cannot elapse the right to self defense. And generally speaking, as long as territories held by another state, there can be necessity for using force to recover it. And opposing restrictive view holds that once hostilities subside, and an unspecified amount of time passes, necessity for self defense ceases. And like many doctrinal questions in international law, I think the answer is inconclusive. And when thinking about what should law be here, I think our normative intuitions are torn, or at least mine are. I think most of us, you know, if we take states territorial integrity seriously, it seems arbitrary that just because time has passes, be loses its right to recover the territory. Moreover, wouldn't it provide a perverse incentive for aggressors to hold on territory? On the other hand, we also think that, you know, war is intrinsically bad. After all, you know, killings have stopped and have not been going on for a long while, let's assume. So it seems strange simply to permit the resumption of hostilities in a later point of time. And furthermore, in a world where territorial disputes are abound, wouldn't such a result rule result in rampant abuse? So this paper explores these torn intuitions and asks, so what do we have to believe in order to believe in either one of these approaches? And then how to think about law in such indeterminate or inconclusive situations? So first of all, I want to avoid the easy answer and kind of distill the dilemma. So when this easy answer would be that, you know, war is indeed bad, but prolonged occupation is hardly better. It usually involves gross human rights violations and violations of self-determinations. And this pushes us towards the permissive view. Usually when a state seeks to recover long lost territory, it's more than just about territory, it's also about infringement of certain rights. But to isolate the dilemma, assume that A is a relatively benign state, perhaps it even offers equal citizenship to the occupied population. Maybe even the local population prefers to be ruled by A since B is a cruel dictatorship. Maybe they have historical connections with A or assume that the occupied territory is generally uninhabited. So this assumption brings us back to square one. Should we covering territory per se absent and ongoing hostilities or atrocities justify resort to force? And to answer this, we need to grapple with the basic questions on the justification for interstate self-defense. And I think it's a manifestation of the greater dilemma on the ultimate subjects of international law, is that the state as territorial unit or the individual co-bearer of individual rights. So let's discuss the doctrinal debate for a bit. So the legal question is pretty simple. The question is whether an ongoing occupation absent ongoing hostilities amounts to an ongoing armed attack that gives a rise to a right to self-defense under Article 51 of the UN Charter. And the recent debate on this question, question was sparked by the Nagorno-Karabakh War of 2020 in which a survey by John sought to recover territory occupied by Armenia for 25 years. And there was also an enormous disagreement in place, and we'll discuss this in a bit. So in a series of publications, Tom Ruiz and Felipe Rodriguez-Sylvester on one hand, and Dapo Akhande and Antonio Stenocopoulos on the other, reached strikingly opposing conclusions. And the fact that such leading international lawyers would reach these completely opposing conclusions says something about inconclusivity of law on this question. So Ruiz and Rodriguez-Sylvester defend the restrictive view. And they argue that we have to inquire about the meaning of an armed attack under Article 51. And even if there is an armed attack, necessity requires that it's going to be ongoing. And prolonged occupation to Ruiz and Rodriguez-Sylvester is not an ongoing armed attack. What we have is a prolonged status quo, which is actually closer to a territorial dispute. And once we have a territorial dispute, even if it's in the form of an occupation, there's no longer an ongoing armed attack. There is no necessity for self-defense. In this case, they argue, what applies is the principle of non-use of force to sell territorial disputes. So in such a situation, you have to go to the Security Council, you have to offer negotiations or peaceful settlements of dispute largely. Right? So continuous occupation is just the case of territorial dispute. And as they argue, and specifically in the context of Nagorno-Karabakh, but that's this would also apply to the Golan Heights, for instance. The case for this is strongest when you have an arms disagreement. How do they reach this conclusion? So they go to the UNGA Declaration of Friendly Relations, right? And this declaration defines what would be an unlawful use of force in Turalia. And it says that every state has a duty to refrain from a threat or use of force to violate international lines of demarcation, such as armistice lines, et cetera, et cetera. Right? So if we have an armistice line, this is even a stronger case to argue that continued occupation of holding of territory is, sorry, lapses necessity for self-defense. And they also make some policy justifications which are kind of, I mean, I think it's less from ethics, but more kind of a legal policy justification. So one, they argue that under a permissive view, right, the right to self-defense could just be revived at any point, which would cause uncertainty and instability. And every territorial dispute could be rephrased by the other party as an unlawful occupation. Right? So this would completely undermine the prohibition on the use of force. Right? And in that context, right, if we adopt the restrictive view, I mean, their view, states would not be able to invoke now claims of self-defense against territorial disputes in the distant past, going back even decades or more. Right? So their argument is more, mostly about uncertainty, stability, and less about justice or ethics. Right? So this is one part of the argument. The other view, which I call the permissive view, is by Dapo Akande and then Antonio Sanacokulos. So their argument is the complete opposite. Right? So to them, continuous occupation, which results from an armed attack, is just part and parcel of that attack. Right? So if this is true, so necessity for self-defense persists as long as the occupation exists. Right? The passage of time cannot change this on the opposite. You know, the opposite might be true. The passage of time just reveals that the occupant has no intention of returning to territory. Right? So in this context, they argue a prolonged occupation is not a territorial dispute subject to the principle of non-use of force. Right? What they argue is that you can distinguish between genuine territorial disputes. Right? And territorial disputes and situations of prolonged occupation and the way to distinguish them between these situations by asking whether the territory was previously held by another state in the era of the UN Charter, in which force became clearly unlawful. Only in such cases, the right to self-defense kicks in to begin with. Right? So all other, you know, ancient disputes about territory pre-UN Charter would not, will fall under territorial disputes. Occupations resulting from uses of force post-charter, they can be viewed as continuous armed attacks. Right? And in terms of, you know, doctrine or in conceptual terms, so they look at the definition of aggression of the UN General Assembly and they show that it defines unlawful occupation as a type of aggression and aggression correlates with a notion of armed attack. Therefore, ongoing occupation is ongoing armed attack. So it's a very conceptual argument. Right?  Right? Because they say that such agreements do not alter the temporary character or change the status. So once it becomes clear that the armistice is treated as something permanent, right? Maybe if the occupant annexes the territory, the territory was unwilling to discuss returning it. So then, you know, necessity is revived. Right? So it's not about armistices, don't just negate necessity forever. In terms of justifications, right? So they also make instrumental arguments. So they say, well, the permissive position does not reward aggressors, right? Because restrictive approach would, you know, provide incentive for states to occupy territories and remain in control. And in this sense, it enhances stability, right? Because states would have less of an incentive to occupy territories. Second, they argue that their view reduces uncertainty because under the restrictive view, it's unclear at what point an occupation becomes prolonged, which elapses the necessity for self-defense. So they say, well, under our view, you know, self-defense is available to the entire period of an ongoing occupation. Now, to me, the doctrinal debate is pretty limited. I think it's a bit unsatisfying. So first of all, you could see the completely opposite interpretations of practice provided by both approaches. I won't get into it, but both of them learn completely opposite conclusions from this practice. Second, I think that each position really kind of undermines the other, right? And on the same level of argument. So each points out the uncertainty in the other, and I won't repeat the arguments here. Each position's instrumental arguments cancel each other out, right? So each one says that the other position will incentivize aggression, and we have no way to really find our way out of it. But I think, perhaps most importantly, or I think most interestingly, and this is kind of what drives my motivation to discuss this, is that each position is really undermined by a competing principle from within the international legal system itself, right? So the restrictive view can be challenged by international laws' emphasis on territorial integrity as the basic kind of unit of self-defense. Well, the permissive view can be challenged by invoking the human cause of renewed war, and this, you know, of course, invokes human rights, right? So this really boils down to, I think, a normative dilemma. What is self-defense for? What is it necessary for to defend territory as such? Or to defend life, right? And of course, the former pushes to the permissive view while the latter might push to the restrictive view. And here, I think, you know, that it can be really interesting to kind of take a step back and think of it in terms of ethics, ethics of war or ethics in general. So when we think about, you know, what would be the normative, you know, access to think about worse of recovery. So I think there are three. One is the access of stability, the other the access of killing, and the third, the access of sacrifice. So let me kind of just go through them. So the access of stability, here the question would be to what extent would it be justified to alter the status quo in order to recover territory? And I think in here, both positions argue against each other. And ultimately, I think this level of argument cannot be determinative for several reasons. First, because stability is a factual concept, and it doesn't have independent moral worth. I think it's a proxy for protecting other values, like life. So I think that that should be our focus. The other reason why I think the access of stability is less pertinent is because it's really problematic to decide questions of life and death on the basis of incentives, right? I'm allowed now to go to go to war of recovery, to incentivize or disincentivize other aggressors. That would be using people as means, right? So there's there's a real problem in making the argument about incentives. So the main questions I think are about the access of killing and sacrifice. So the access of killing would ask, would it be justified or necessary to kill people in order to recover territory held by another state for decades? And here I think, you know, the traditional view would be, yeah, of course it is. The traditional view looks at, you know, states as some kind of quasi individual, and the territory is imagined as part of the body of the state, we can portray it that way. And if the territory is part of the body, right? So whenever it's held, you know, there's real compelling interest to act in self defense, right? And this view, I think has significant pedigree in classic international law. But I think it also can't be the end of the analysis. And we think the wars of recovery might be somehow different. And here, you know, a possible explanation for some of our counterintuitions can be found in revisionist approaches to the ethics of war, that question the premise that defending national territory as such justifies killing. And in these, and in such in general, such theories refuse to ascribe to territory the same value ascribed to human right life. So the argument would be that in wars of recovery, this is particularly the case, because in usually in usual situations of territorial defense, the aggressor attacks through ongoing use of kinetic weapons.  But in wars of recovery, it is the defender that initiates the fighting at that specific moment. And in such cases, the protection of territory and the defense of life become disentangled. And so in ethics of war, there's a very interesting hypothetical called the bloodless invasion. And this is a situation in which the aggressor wants the territory, but will only resort to killing if encountering resistance. But there's a classic moral dilemma in ethics of war, whether it's permissible to resort to killing in situations of bloodless invasions in order to defend territory. And I think that the continuous holding of territory is actually a real life example of what is usually presented as a hypothetical of bloodless invasion. And I think this also allows us to better understand the normative significance of time, because as time passes, it becomes less likely that absent further intervention killing will be renewed. So time to hear service as a proxy for the reduced likelihood of violence. So some theorists of revisionist just war theories argued that, well, there can be absolutely no justification for killing to secure rights or interests that are lexically inferior to the right to life. So on this view, like the course to force against bloodless invasion, among them continuous occupation is clearly wrong because you would kill people to recover territory. But this is not the end of the story. So to see how the debate becomes complicated. On the other hand, some revisionists proposed to view defensive territory, even in bloodless scenarios, as situations that are called conditional threats.  A demands of B to suffer a lesser harm, your money under the threat of resistance will generate a much greater harm your life. So defensive territory is not justified as such, but it can be viewed as a defense against a condition threat against individuals. In other words, it's the preemptive defense against the aggressor's lethal response to an attempt to reclaim the territory that justifies killing. And prolonged occupation could be easily conceptualized as a conditional threat. So State A took territory by force and now demands of State B to tolerate the loss of its occupied territory under the threat that any attempt to recover it would result in a lethal response. And I think the view of the conditional threat really goes a long way to justify the permissive view on the level of the axis of killing. But then we are met with the axis of sacrifice. And here the question is, is it justified to risk an occasion harm to your own people to recover territory? And again, here, you know, traditionalism is oblivious to the question because resort to war is perceived as strictly an interstate issue. But again, here revisionism really destabilizes this argument. So for instance, Rodin says that in interstate settings, a conditional threat cannot give a rise to a right to self defense. Because what we're doing here is we act against a deprivation of a lesser interest, the territory. And while doing it, we occasion harm to the greater interests, e.g. life, of people to which we owe a special duty of care, namely our soldiers and civilians. So under this approach, there is no way to justify self defense against bloodless invasions, among them continuous holdings of territory without an analogy of the state to an individual, which the revisionists don't agree with. So this pushes us back to the restrictive view. So I'm out of time, so I'll skip a few things. I just want to say that I think, you know, this question really evokes several levels of uncertainty, right? So both uncertainty of who is the ultimate subject of rights and international law, states or individuals, and the moral uncertainty regarding the permissibility of resort to force against bloodless invasions or conditional threats. And then the open questions, assuming that we can't resolve this dilemma, what should law do? And here, you know, it's really kind of a preliminary argument, but one way perhaps is to kind of just recognize that we can't agree about the normativity of this question. And therefore, maybe treat the questions of wars of recovery as something which is not prohibited, that law does not necessarily prohibit, but also provides a space for condemnation. And this is something that, you know, we'll be happy to debate really in the initial stages. So thanks, sorry for racing. I had a time constraints. So thanks everyone and looking forward. Thank you very much. Yeah. I think you can. Yes. Yes. Thank you very, very much. Wow. I don't know to what extent I was back to basics. It was and it wasn't, actually. Fred, have you raised your hand already? Yeah, I have. Is that what we're supposed to do? Well, the idea was like to give the floor first to Nehal and then take Oh, sure. Sorry. Sorry. Just my enthusiasm to guess. Okay. I can see that. Actually, I think, Maria, given that because there's a lot in Elias from discussion, it might be okay. Just a quick one, you know, just a quick one. Yes. Sorry to interrupt the transition. Elias, this is a fantastic project. I mean, I think it's super topical. There's a sense in which I'm interested in the kind of epistemological question, right? What do we do, which is of course, an old question, what do we do when the law is hopeless to resolve normative dilemmas and of course, the move to ethics, you know, specifically just for theory and the kind of the best philosophical work that's out there. And, you know, with all our qualms and ambivalence as lawyers to engage this, you know, the realization that philosophers unconstrained by narrow interpretative exercises are sort of often way ahead of us in terms of their nimbleness, right? And their ability to sort of really engage the normative issues. Whereas I think, you know, the existing law controversy, I find a bit stale, right? I mean, the idea of the whole thing on armistice, etc. And, you know, just taking something from, I mean, just these interpretive exercises are really limited for these kinds of situations. One thing that's really craziest, but this issue hasn't come up before. So one argument I'd like to make is, in some ways, the, you know, recovery, self-defences recovery radicalizes an even bigger problem, which I'm currently working on, as you know, which is in the context of Ukraine, like what, what, what, what of a case where you're actually defending your uncontested territory. And as you know, this has been really in the, in the headlines at least in the background. But I mean, I think even Zelinsky has to address some of these questions, right? I mean, and Don Bass and, and, you know, even Crimea, right? Haven't been lost for that long. So, and there is a case, but of course, for Russians from a public international law point of view have clearly reactivated the right of self-defense in, you know, in, in, in the very short term. But even there, there's a question of, you know, the extent to which you're willing to sacrifice lives to reconquer territory. Mario in Inclinations, and I've shared a draft with you on this, but I mean, I think it serves us well to take seriously the just war theory debate. But I think there's, there's something to be said for kind of trying to have these conversations within human rights as a sort of membrane between positive international law and just war theory, imperfect as it is, etc. But I'm, you know, obviously these are core constitutional issues that involve the state's authority to solicit sacrifice, right? And on which human rights one would think would have quite a lot to say. Now it may not be, I think we need probably to move beyond sort of the kind of red lines that we had envisioned, you know, in, in 1945 would, would delineate for use contrabellum towards something that's much more in the nature of the law helping us think through difficult issues rather than telling us whether something is legal or illegal, right? And that's very different. And, and of course, that's, you know, part of a tradition international law, obviously of people, you know, not in a European vein, you know, we think that the law is, is, is not, is not conducive to bright lines, but nonetheless is very useful in the way it kind of spells out the normative stakes in some of these difficult decisions. So yeah, thanks a lot. Yeah, really great. Okay, thanks also, Fred. We always tend to kind of be interested in the same things at the same time. So I was really happy to get to your draft today. Yeah, I mean, I don't have, I agree, I don't have much to add, but I do think, yeah, if you can see here on the slide, that I think there are traces, let's call it a legal doctrine that starts thinking about sacrifice. And then I'm looking forward to reading your paper, because I'm sure it can, you know, be placed here in this in this discussion. Yeah, so thanks for that. Thank you. Yeah, I saw you put general comment over there, 36. And I remember, you know, your, your, your paper about the humanization of your critique of the humanization of usabellum. There is one more question here. Nehal, should I take one more short question and they give you the floor because I'm saying that because Nehal has to live at three. That's why so Brian, I can see that you raise your hand, please. I thought I had the one more hand. Okay. Yes, Brian, you can take the floor. Maybe you cannot hear us. Or if you want, you can write. No, we cannot hear you. Unfortunately, because sorry, because we cannot hear you. Maybe you can draft your question. Is that okay on Q&A? And then I will read it afterwards. So great. So since we don't have any other urgent question or comment now, we'll give the floor to Nehal and they will come back with a question. So yeah, thank you very much. Already massive foot for thought and we will come back very soon. So thank you. Nehal, you have the floor. Thank you very much. Great. Thank you very much, Maria. Just making sure everybody can hear me clearly. There's some sound issues before. Can you hear me? It's a little bit, we can. We can. Yes. It's low, but we can. Yes. Yes, I'm sorry. There's not much I can do about that. I don't know what's happening, but I'm using the best headset I have available. So if you can't hear me at any point, just let me know. Okay. So thank you very much for the opportunity to participate in this webinar. Thank you to Maria for the invitation and to all of those who are joining us today. I wanted just to talk not very long, maybe 10 or 15 minutes about what is essentially a follow-up to the work that I did a few years ago on autonomous weapons systems and just to put that in context. Five or six years ago when I organized a research conference on some of the issues arising from autonomous weapons systems, the consensus of a lot of the people who specialize in informatics who are computer scientists was that at that point in time the technology was still fairly immature, particularly in relation, for example, to things like computer vision and also in relation to what we would now call machine learning. And of course, one of the most dramatic developments I think of about six or seven years has been the sense in which there has been a radical acceleration in capacities in those fields, which makes autonomy in the form of what we gloss as artificial intelligence, which usually refers to a particular kind of machine learning using particular kind of computational techniques such as neural nets and deep learning that this thing that we started to call artificial intelligence is now a technological capacity that is too low according to somebody. Let me try something else here. All right. Is this any better? Yes. That's better. Okay. So clearly my head questions are not working. So let me return to where I was. So the point that I was making is that our technological horizon seems to have shifted relatively quickly in terms of the expectations that we have about machine learning and what we gloss as artificial intelligence. And for those of you, I'm sure many of you know, the term artificial intelligence has actually held to encompass a wide variety of different kinds of technology. Some of it is sort of a logical symbolism. These days, what we mean really when we speak of that term is sort of accelerated forms of learning which characterize sort of very large amounts of data, data patterning, data processing, the under the perception of patterns from that data, which allow then quite some ways startling levels of pattern recognition leading to judgments and forms of recommendation. So all of this is to say that I think again, from the normative perspective, it seems clear that many countries in the world have demurred when it comes to the question of a full-fledged autonomous weapon system. They say publicly at least, they believe in something called meaningful human control, a term of course, which is difficult to define but has no legal definition, but it's certainly something that many states talk about and write policy papers about and exchange views about, but that ultimately they resist or won't accept possibility of pure autonomy in a weapon system, which they define in a relatively narrow way as the capacity, the autonomous capacity of the system to select a target and to make a decision as to the use of force against that target. So if that's what we mean by an autonomous weapon system, there's many views of states that would suggest that they don't believe that is desirable or acceptable. I'm not sure they would go to a virus to say that it's unlawful, but they don't, they themselves don't commit to the idea that they should be developing those things or that they would like to develop those things. So at the same time, this capacity that we've described as, we now describe as artificial intelligence, let's call it machine learning using sophisticated techniques such as neural nets has advanced perhaps faster than than many five or six years ago would have anticipated and it generates an impressive capacity to identify certain kinds of things, characteristics to absorb large amounts of data generated by all sorts of different kinds of sensors and to relatively accurately discern things such as faces, complex speech patterns. So there's been a gigantic leap forward in language processing, which again was I think quite unexpected six or seven years ago. So all of this points to the question of how do we think about the relationship between this and forms of defense technology and what would that mean for the legality of that technology after we evaluate the legality of that technology? I think in the early stages of the autonomous weapons debate, there was an awful lot of perhaps all too easy conclusions about legality one way or the other, right? There was this strong claim that no it couldn't be legal because it was somehow inconsistent with human dignity and the other in fact has contributed to a paper which is a version of that argument which argues that there must in some sense be an element of human discretion and there are others who very I think also somewhat rapidly reached the conclusion that legality per se was not a problem provided we could always be assured that the weapon would behave legally. Now I think the difficulty with with either of those positions of course is in the sense it's speaking from a kind of it's articulating a position in relation to these capacities which is either ex ante or ex post that either we can establish a sort of first principle which is the real touchstone of legality or we can we can maintain the existing principles but really know with some sense of clarity and determinacy exactly how the system is going to behave under all relevant conditions in order to evaluate its legality. And the so the work that seems to me interesting and perhaps a richer a richer terrain for exploration and to which I've I've been working in a sort of advisory capacity here in the United Kingdom is really well what if states are increasingly developing AI enabled weapons capacities which are not in themselves weapons but are still making a contribution to hostilities in the manner that would render them susceptible to article 36 review right as you know the compliance of a weapon or a system or a means or method of warfare with international humanitarian law all all signatures to additional protocol one commit to the idea that they will review everything that they develop before they field it in order to satisfy themselves that the weapon system or the means or method of warfare is in fact compliant with the principles of international humanitarian law and this is an interesting puzzle I think what would that review look like not in relation to a weapon per se but into a means or method of warfare that for example engages in forms of recommendation such as tactical movements identification of threats and risks differentiates perhaps using things like facial recognition technology between persons who are of interest and who are not of interest I mean this is still somewhat one or two steps short of something like target identification although it could quite easily slip into that but it's definitely making a contribution to the conduct of hostilities and therefore would fall within the means and method of warfare which is amenable to and they should be reviewed under article 36 and if you ask in those terms the question is how do you know that this system and the people using it can be confident that it it complies with the requirements of international humanitarian law that's a question in some sense you have to ask you're legally obligated to ask under article 36 of the additional protocol but what would that look like what would that process of review look like and one of the challenges I think of developing sort of these very complex artifacts these very complex technological artifacts with these capacities built into them is that under very standard procurement processes you know that the the the sort of ministry of defense legal advisors are not really called upon to give an opinion until quite late in the day once a system is is being prototyped once certain parameters of its performance are established and it's presented towards the end of that to the legal advisor for a judgment as to whether it complies with the law support or international humanitarian law requirements with with systems of this kind I just want to see if I can give you an example of what the life cycle development of a system like this might look like let me see if I can share my screen hold on I think I can actually never mind I think I'm not a host maybe you have to make me a host I think it says all panelists can okay let me try again sorry yeah because this is an interesting documents to look at in this context okay I might have to pass on this the simple reason that it's going to be a bit too involved but the basic point that I wanted to demonstrate was that artifacts technological artifacts which such as recommender systems right or systems that make recommendations about tactical driving or even things that do that that make recommendations about efficient usage of resources all of these things have our systems of systems their systems of hardware and their systems of software and then they are connected network to systems of data creation and production which must constantly update themselves in order to function effectively in these in changing environments so the the complexity of those systems is very significant they go through multiple and highly non-linear processes of development and technological change and review in the process of prototyping such that by the time if you allow the the question of sort of legal legality and legal review to be left to the end it's very likely that the legal advisor is not really in a position to say terribly much right and some of the legal advisors that I've spoken to about this in the British context reflected on this in in relation to a legal review of very advanced fighter jet capabilities in the end they said you know the pile of documentation that we received was about three or four foot high we were not really in a position to do anything except take take at face value the technological judgments of those who produced that documentation engaged in testing so that's fine I suppose one might say for a fighter jet at some level but if the system is that we're that we're talking about is making quite complex recommendations to a human operator it does raise a specter about the responsibility and agency of the human operator but also the circumstances under which they can be comfortable and confident trust in a sense in the the legality of that system in the way in which it draws inferences from all sorts of data sources in the integrity of the data that's used in the first place in the learning models that are used in order to create the frameworks for recommendation I mean you can see already that there's multiple layers and multiple dimensions in which there there could be quite a lot of fragility but in also in which in respect of which assurance is needed not simply that the system kind of functions and does what its developers say it's going to do but in some sense the way it's set up to function is broadly speaking within the space of legality that we believe it should be in and so this so this raises all sorts of I think interesting and somewhat deep questions about first of all the relationship between technical standards and legal norms in humanitarian law so you know the the legal norm for the safety of an aircraft in civilian usage is really set by an engineering standard which is considered to be an acceptable practice so in the course of some of this work I've had interesting conversations with aircraft safety engineers who tell me well that the standard we all operate by is 10 to the minus nine every time we get on an aircraft there is a 10 to the minus nine chance that it will fall out of the sky and crash but we can't eliminate that but we consider that to be safe right well what's the standard as it were for failure or the acceptable risk of failure in any one of these systems or in the interaction of these systems that could characterize a an AI enabled recommender system that in itself is unclear because the there's no available standards which are generally accepted across different defense forces across different industries we are still in the process of assembling those things and it's something of a recollage to do that but secondly how does that level of safety relate to the level to legality that's we in civilian use as we we use the principle of negligence right the reasonable the reasonable manufacturer but we've not I think developed any real way of articulating what we think is the relationship between the legal standard and the technical standard in the development of these kinds of systems that could have kinetic application so this is not to suggest any straightforward answer to this it's simply to point to I think what is an important set of well sort of some interesting theoretical points and I think some interesting practical points so I think the theoretical point is one might say the interaction or the concept of legality itself here is not found so much in the text of any given norm but in the relationship between the law and the technology itself which is mediated by human beings which are by lawyers and technologists so there's some interesting sense in which I think there's a horizon of development of the norms that that will emerge how quickly I don't know but that will emerge through the extent to which lawyers technologists government officials procurement specialists contract agents form part of a kind of connected social technical system and if we try to understand what legality means in the evaluation of an artificial intelligence enabled artifact we are actually needing to ask the question what's the nature of the social technical system that made it and are we satisfied with the many many choices that will have been made in the process of constructing that system and if we're not satisfied then we have a basis as it were to question legality but it's very hard to do so if you could imagine right it's very opaque it's the proverbial black box of science and technology studies of which much has been written so that's a theoretical observation and and it but it poses a fundamental normative problem at the level of questions of responsibility and explainability so explainability has become a kind of fashionable dimension I think of a lot of discussions of artificial intelligence can you explain the decision I think that is an interesting puzzle and it's a puzzle especially for the operator right if the operator in a certain context is made a recommendation but they don't have any sense of how the recommendation was derived at they may simply mistrust it now the recommendation could be the right one or it could be the wrong one the problem is that when you when humans don't trust machines then in some sense the machine is is functioning inadequately and and becomes a liability rather than something that's supposed to assist human decision making but how do you know if you're an operator how do you know whether you should trust the machine who's explained it to you on what basis could you evaluate or second guess its recommendation should it provide that information to you so that's the kind of the operator side but explainability has a bigger dimension here I think and this is what I think looking at this in that from the perspective of a of a socio-technical system is terribly important looking backwards we must be able to explain not just why in one instance a human and a machine operating together resulted in a certain kind of action which had good or bad consequences right which resulted in killing civilians or you know imprisoning the wrong people or etc but we also need to explain how it was possible ultimately how all the human judgments that made that possible came to be and whether we were satisfied with that chain of just of judgments and decision making which really begins from the from the outset that the conceptualization of the technology and goes all the way through its preliminary specifications you know it's it's um it's various dimensions of its use case the identification of its data sources you know the judgments that are made about how much fragility is acceptable before it can be it should be taken out of the certain situation so these are multiple decisions across the development cycle and at some point I think the normative implication of thinking about it in this way is that lawyers also but but lawyers and technologists need to be able to work together at all of those points not necessarily always to come up with what we think is absolutely the right answer but that the answer itself is in some way explicable or comprehensible to those who will suffer the consequences of that particular technology so so so I think my my my basic point here is sort of two one is I think theoretically speaking the emergence of AI-enabled defense systems which involve elements of delegation of judgment by of two machines of decisions that might otherwise have been made by humans not necessarily decisions to use force but lots of precursor judgments this in itself I think poses a real challenge not to the black and white question of legality or illegality but it poses a really a deep question to how we articulate and concretize specific legal requirements for the development of those systems and how do we integrate let's let's call it a kind of orientation or an ethos of legality into their development thank you thank you very much Nehal wow one more very rich intervention that with lots of food food for thought if I could say you know about the two presentations one or use a bell and the other one more about you know the artificial intelligence and new types of weapons both of you you know I think you highlighted you know this we don't talk about only law we talk a lot about morality we talk about ethics I don't know if I could talk about the limits of law the interrelationship it's kind of going back to basics as as Elias said at the beginning you know you were talking even about the subjects of state or individuals and then when it came you know to Nehal's presentation again this ethos of legality you know that you concluded your presentation you know it shows a more nuanced and if I would if I dare to say a more fluid concept of legality that maybe you know indicates a bit of more imaginative thinking you know to move beyond some strict understandings of legality as you say we don't find it in legal text but it's a matter you know of intercommunication you know between lawyers and and and other disciplines now having said that I would I would like to give the floor you know we have about 20 minutes you know for these two presentations to two participants please raise your hand or take the floor or write your oh wow that's I can see now is it Luigi I think Luigi has written uh Luigi would you would you like to to take the floor can you take the floor or maybe you know summarize your your question is that possible yes okay Luigi you have the floor no Luigi can you hear me okay today something is not uh working uh yeah it's uh I don't know if any happened Fred did you did you read the uh the question and then I can scroll down you know and maybe you want to respond yeah yeah I want to respond uh yeah thanks Luigi yeah you're absolutely correct that the dilemma actually has phrased by rodin and other it applies also to actual aggressions but in actual aggressions you know it's because maybe not in you know crazy hypotheticals but in real life they're always they always involve kinetic force because no aggressor just enters the territory and saying well if nobody's gonna shoot me I'm not I mean it happened in World War II but I mean that's really far fetched I agree that the same problem applies to actual aggressions but I think the situations of wars of recovery I think it just makes more radical as as Fred also said because then you know we have you know a long time that has passed without actual killing so there is really no very little chance that these killings would be renewed so I think it's a particularly radical case of an aggression but I agree that the dilemma as it was originally phrased applies also to regular aggression but it's like I said in wars of recovery it's easier to disentangle between territory and life that's why I think it's more salient there I don't want to get into Helen Froze I mean Helen Froze and other revisionists that argue that you know we should you know dump the principle of distinction to begin with I mean they don't even argue that this should be you know that that should be applied in law in positive law so and say well when we think of it you know in terms of deep morality the guy that designs the weapons and sends people to war is much more culpable than you know a foot soldier somewhere so the principle of distinction doesn't make enough sense but of course because of slippery slope and all kinds of other consequentialist argument law should have a bright line of distinction so I don't feel that I have you know I can tell you that I really like Helen Froze writing that she's absolutely brilliant I tend not to teach that even when I do teach ethics and war because I just it's a bit scary to me so let's end at that the terms of where do we draw the line between humanizing and politicizing war yeah I mean that's always a risk when you invoke ethics or any normative argument and they don't think we can really draw a line but on the other hand no I don't think we can ever do anything which is not based on any normative assumption even the assumption that we shouldn't involve ethics is a normative assumption but what will happen if we will involve ethics so yeah sorry for taking too long thanks Nehal you have a question addressed to you directly sorry let me just if I can see it at the Q&A you can read that or if you want me to read it yeah if you could I can't seem to find it I mean I can see it okay so the question is do some states have currently already autonomous weapons systems or will this weapons system rather group produced only in the future? right so the short answer is that there are highly automated weapons systems right which in some sense have been with us for a long time so they are fire and forget systems where so the classic example is a kind of monitoring munition that waits until it registers a certain frequency and then it directs itself to the target and some kinds of missile defense systems are in some sense for all intents and purposes autonomous in that once they're switched on they simply decide for themselves how to or to react to incoming incoming ordnance so in that sense we do have something like it but obviously it's a very different than some people prefer to call these automated systems and there's many theaters in which you would simply you could simply rule out using them on the basis that they are their level of discrimination it's a little bit too basic right so you know the risk that you could you end up firing these systems where you know where there's large civilian populations you simply couldn't use them so yeah so from that perspective we have them but it not really in the horizon that we're talking about where you're talking you're thinking of you know highly data intensive forms of autonomy let's put it that way these are maybe a better distinction is between very low data intensive forms of autonomy which we have and which in some sense are quite mechanical and high data intensive forms of autonomy that make use of what we might call artificial intelligence mechanisms and Fred has said is all legal scholarship current yeah that could be right okay um any other comment observation question we still have a couple of minutes you know before we conclude our first panel maybe I can give the floor back to I don't know Fred if you would like to add something in the previous question you know before no that he was addressed to Eliab I think was also addressed to you I think I have a question for Eliab just yes sorry that I'm not familiar with the this sort of stylized distinction between well so long-term occupation which is in some sense comparable to bloodness about bloodless occupations I just wanted to explain that a bit more so is the kind of case for that the example of that something like Nagorno-Karabakh or I mean it's just you know I guess my puzzle is to what extent do the normative considerations hold if there's in some sense always can the contestation of the occupation and people are always resisting it fighting on its behalf or alternatively the occupier is doing all sorts of things that um are about damaging the life of the population or destroying that political society I mean that's no longer an international conflict but does that to the considerations that you're talking about have any applications there well you know I don't want to kind of before I haven't looked into the case studies uh deep enough to kind of think well can we really say that Nagorno-Karabakh is this way or the Golan Heights is that way I think yeah maybe you're right you know that I shouldn't phrase this as a real life example because it might be that it's just as hypothetical as bloodless aggression so it might be not precise to phrase it that way if I don't have a case study which I can really commit to right now but I do think it's a I think it's a more possible situation than bloodless invasion it's more easy to envision something like this happening and to make a remotely plausible claim that some situations um might you know uh be considered such situation especially when you have you know and again without pre-judging the facts when we you have a situation like Crimea and I know there are rights violations there but let's assume that most of the population wants to be part of Russia and then so big if let's assume okay and in such situations really I think it kind of exposes the dilemma of resort to force to recover the the territory so yeah so I would leave it at that okay uh any other comment or question then maybe I can ask back you know uh if it's okay to read this thing about the humanization you know and I we all know that it's a big deal you know we were talking about I mean we'll talk about the humanization of international law then we went into the humanization of IHL now as Eliav has written as well you know we talk about the humanization of Abellum you know and I'm not talking about humanitarian intervention but I'm talking about general comment 36 you know making an aggressive war arbitrary loss of life in an aggressive war also uh at the human rights law and and uh Luigi's question was about you know the the risk and dangers it it feels also that we go back to basic and then you know I was impressed uh Eliav you know when you went back to the right to life you know when when we used the the the human rights thing so so I still wonder you know um what does that mean and this is a very strong of course you know Andrew Clapham has a very strong position about that you know the humanization thing and this was very much actually in his latest book as I mentioned at the beginning you know uh of basically since we outlawed war everything else you know has to be out of the picture but but but I wonder what are your thoughts any of your thoughts about that I know it's a very big topic but maybe we can conclude with a couple of thoughts from all of you if you want yeah I don't understand the idea of general comment 36 is saying that uh killings pursuant to an act of aggression or if so effective violations of the right to life that doesn't mean that it makes you know IHL or everything redundant it simply makes kind of a normative split so soldiers that kill other soldiers and then aggression would still be compliant with IHL they would still not be committing a war crime they will still enjoy combatant immunity on the other hand the people on the receiving end might have a valid claim against the state from human rights so it's kind of a split between combatant immunity which is preserved by IHL and human rights law which attaches to the state qua state so so I don't think it many people think that well it throws up you know combatant immunity and quality of belligerence out of the picture no it just adds another level of illegality to an already existing illegality under the use adbellum and I think it might have a lot of you know very practical implications for instance if you look at the ruling for preliminary measures from the European Court of Human Rights about Ukraine and Russia so the court calls on Russia to cease attacks against civilians if you understand you know aggression as a human rights issue even against combatants so you should add that to the equation right so why do the I mean why is the preliminary injunction whatever the term is against the only killing of civilians if soldiers also possess a right to life right so it opens up a lot of you know possible venues for discussing of for legal discussion even if we don't you know throw out the window the whole idea of legal belligerent equality under IHL thanks anyone else has thoughts about that or something that you would like to comment Nihal if I can say that before we we complete I remember that I was in one of these meetings round tables and at some sites the human rights language you know discourse came back to the table especially with autonomous weapons with artificial intelligence and some some people they even suggested about the human right a right to human intervention you know that we need a new human right you know and that will be and I was a little bit I was very much puzzled about from this suggestion you know I thought I found it very problematic given the fact that we always go back to human rights you know and we think that the answer to everything is a human rights thing so I know you know I don't know if you want to comment on that or if you have any thoughts about that no no more no pressure on you thanks Ralph thanks no that's interesting I suppose again I think the the discussion about the right to human intervention or you know meaningful human control right in a way so first of all it's not really clear what's the what's the legal scaffolding that makes meaningful human control significant it seems to be much more of a of a kind of intuition or a moral or ethical position which we then could try to find some foundation for in different human rights norms but I suppose for me the again this is really just reflecting on my own experience with this in the last year or two in order to create something called meaningful human control you're you it's a it's somewhat misleading or somewhat of a distraction to think about a sort of singular point in time that says okay once you're out in the field using it there's got to be a moment of meaningful human control in fact chances are the nature of human control and its meaningfulness by that moment is already completely constrained by a whole set of operating procedures by the data that that and the ways of of analyzing and the models of data that are being of analyzing data that are all built into this system of systems that out there in the field so meaningful human control chances are at that moment it is potentially quite narrow and speaking of it sort of formalistically is something that you have a legal right to at that moment again could be a mistake it could be you know we could debate the the legal foundations of that of that claim but that could be something of a distraction as to what we're trying to achieve you know what we're trying to achieve as I suggest it seems to me anyway is a is a framework of itrability of explainability of making the parameters of decision making meaningful at the given moment in order to to do that we actually need to begin our processes much earlier and so that we can explain how it is that the operator at that moment had these constrained set of choices and whether they were reasonable in acting on those choices at that moment but confining ourselves to the reasonableness of the human control at that moment is seems to me inadequate right because it first of all could set the humans up as scapegoats that secondly creates the perception or the appearance of a framework of explainability and accountability that's actually really not sufficient okay thank you very much all unless there is I don't think we have any other question and comment I think I want to thank very much both our speakers for these extremely sophisticated and refined interventions both of you on user bellow and using bellow and not only about law and morality about the limits the prospects about where we go problematizing our audience thank you very much both of you thank you to all the participants for for attending for submitting questions we will have a short break and we will come back in 10 15 minutes you know with the second session where fred christians and the vika will join us and again you know there will be again a panel on on it's not only it's a it's a combination of normativity history theory another panel on ihl and user bellow and of course an abusive internationalist so on that note thank you very much in the house thank you very much elia thank you all I know you are very busy and you have to run to your other duties it was great seeing you and hopefully next time we'll be all in person I'll try to log in from the train yeah okay thank you all we will be back in 10 minutes please thank you thank you very much thank you guys hi christian hello fred how are you just trying to get the can you hear me now I yeah I can definitely hear you no problem good to see you so what's the background good to see you is that a real background sort of or is it fake it's all it's all fake it's a potemkin background it's uh no it is it is actually I think uh it's it's McGill university uh a part of the library somewhere um yeah they provide us with these backgrounds which you know it turned out to be quite useful uh during the pandemic to sort of give the illusion of normality yeah yeah yeah and speaking of the big issues are you are you post pandemic now I mean I remember when we once met you were traveling with family through the near east and I still think that's one of the coolest denial and it was everything I think this was the Armenian event and yes are you yes are you are you back to that no I uh you know it's taken a hit for sure and you know I find myself sometimes wondering whether I didn't end up trapped on the wrong side of the Atlantic given that you know to this day still most of my activities are in Europe but you know going has just become exponentially more complicated and expensive so I still do it but but not with family as as as I used to obviously family is now getting older and a bit harder to sort of travel with right back in the days it was just a toddler was uh was manageable but yeah so uh no I'm not sure you know I'm thinking sometimes I should uh I should move back before I'm too old then it's become uh yeah no flying flying is uh like if for every gig you need to cross the Atlantic it is complicated I mean I obviously have things in the US and Canada but not really I mean international it's fascinating how international remains quite euro-centered as we as we know well well I think in Europe it remains euro-centric yeah yeah yeah yeah I think elsewhere it remains elsewhere centered yeah anyway yeah I mean that's true anyway Maria I think you want are you warning us that everybody else is listening and before we yeah yeah but it's okay then we are going to you didn't say anything uh sure we exchange uh okay sure sure it's all recording as well all recorded well well everything is recorded even when we don't know at the end of the day right so yeah fair enough yep exactly all right the big guy will join us see that can somewhere outside in the countryside so she told me hopefully her internet is working you know so hopefully everything will be fine yes sorry but Fred are we starting no no but everybody can hear us so but but Maria what's the whom do you want to go first uh you can go I mean definitely the Vika will be the last one you know I know that for sure uh so uh you can go you decide how you're going I'm going to introduce briefly you know and then the logic was you can talk up to 20 minutes and then you say it's very relaxed and sure yeah you get you can say share power points if you have I mean okay I'll I'll be without power points okay yeah and I don't know just judging for I mean why don't you just pick Maria I think we'll we'll follow orders and I'll I'll follow orders telling you that the follow orders is a very difficult thing okay I cannot exercise any you only need you only need to give them Maria so you don't need to follow them now but you see I cannot exercise any kind of authority that's the problem but let's go with that with with a program you know like um and sorry what was the program what was I think Asian was first and then we are Fred and then the Vika will join us afterwards and guys thank you so much I know it was very difficult to do it okay and I we made it but I'm but I'm very happy because you know I I just wanted this type of thing that everybody want to say whatever he wants to say you know sure choose the thing that you work and you think okay I want to highlight and talk about that yeah that's good that's good yeah that's the idea so we start in Edwin said by the way I can say that although it's recorded everywhere you know that traveling within uh outside from UK now to continental Europe it's not easy okay especially over the last days with the shortage of personnel in all British airports and and everything so yeah and brexit hasn't started to the big extent you know yeah yeah yeah no it's a big ocean but it's now separating you from the rest of the continent yeah you know I was in Milan last week for two days there was this conference of the concept of obligation and we landed in Milan and then there were these Italian officers and they were shouting Europeans and what did they say? Italians and Europeans that side you know passport control breeds this side it was the first time that I had it like that you know like Europeans that side wow you know the Italians were you know merciless yeah yeah yeah um yeah so the idea is to go ahead with the agile unbound thing afterwards this side yeah we'll talk about it later yeah I will yeah I want it although I see there are so many things you saw this one in Ukraine in the national order I think oh yeah but we're not no we're not Ukraine focused no no no no I thought it was it we have to go beyond everybody's doing oh yeah yeah I agree I agree everybody's doing Ukraine I we had many roundtables on Ukraine here as well yeah yeah yeah and yeah speaking of occupation and everything and I was also thinking you know what happens with an accession you know if the Ukrainians will say they agree if if all scholarship I say if the Ukrainians agree to give up part of the yeah yeah yeah well at the moment it seems more likely that others agree for Ukraine yeah the friends are particular and the Italians I think now never leave out the Germans when it comes to sort of making wrong decisions but um but anyway but that's for a separate talk yeah I'm coming in a second guy okay I can see Alessandra okay Alessandra Gianelli from Sapienza professor Gianelli says the agreement is invalid but I'm just a nasty Italian no Alessandra you're a wonderful Italian but it's yeah it becomes an issue it's it's on the table yeah I mean the Ukrainians will do you know what they do and that's not for us the second guess um and uh you know in in defense of uh international norms but uh but it's something different to there being pressure to do something but it's not in in their interest okay so we have kind of three four minutes and then we start and hopefully this recording thing will be cut yeah I want I want to believe that's a classic right I mean I have had uh uh zoom classes followed by uh questions you know with students who linger and then forgotten to stop recording and then you have to edit because it can go into in all kinds of you know directions and the students haven't agreed for their uh you know bilateral discussions with us to then be uploaded for posterity so yeah yeah there you go yeah um okay would you like to start maybe you know uh if you join us I think very shortly you know so uh so maybe we can start and then people will rejoin you know in your plug uh so uh good afternoon everyone after you have heard all our discussion about brexit and uh traveling outside europe and inside europe and to what extent international law remains Eurocentric or not so uh now officially I'm very happy to to start the second session uh with two I know it's a cliche but it's a fact with two uh very well known I would say leading scholars of international law professor christian times and uh professor strategic migraine I'm very happy you are with me you accepted my invitation it was a roller coaster for quite some months uh I think I love I'd mute you uh it was a roller coaster for quite some months you know to to manage to run these in bed but I'm very happy we are here and we will continue with the same uh module with the same understanding you know both of them each of them will address and then the vika professor the vika hope will join us in a while they will address they will talk about an issue that they decided to choose they want to shed more light on this issue uh within the broader context of international law and and war as you have understood until now we combine normativity with theory and history as well and I'm very happy to give the forefathers to professor christian times from the University of Glasgow and not only uh with an extensive um uh scholarship in many many issues of international law and dispute settlements and arbitration and every other aspect of international law uh so christian will continue talking about self-defense from a different perspective uh so christian thank you very much for accepting my invitation and you have the thank you thank you maria uh thank you everybody for listening in um not just on the chat in between sessions but perhaps even staying on for the chat during the sessions in this case the second session it's great to be with you maria so all delighted to be have been invited and to participate in this session on I don't know not commemorating but acknowledging the 60 years anniversary of king's college's department of war studies and doing so in a in a fitting way namely a discussion on themes related to war and conflict now my my idea is uh well my idea has been to respond to that invitation by picking something that is uh slightly different from the papers you've heard in the first session uh slightly less focused on immediately relevant issues certainly less developed and some of the papers you've heard before the break so that's an advanced apology um but to reflect more broadly on developments over the course of the 60 years and the use contrabellum coinciding with the existence of the department of war studies so it is perhaps I think I'm taking up your point about back to basics maria that's for sure um it's going to be relatively broad brush it's going to be if you want to put it positively big picture stuff if you want to put it cautiously don't expect detail and don't expect sort of finely developed sophisticated argument it's a discussion that I propose to initiate about major shifts in the way we argue about legitimate uses of force in international law and in particular about how we use that dominant exception that permits the lawful use of force at least unilaterally self-defense I've entitled this versatile self-defense uh the idea that self-defense serves very many purposes um is perhaps much broader than domestic lawyers trained to work with self-defense at least it's claimed to be much broader than many domestic lawyers used to the self-defense notion from other fields of law would expect um I will briefly speak about that but then I have spent more time discussing about the flip side of that namely what it is that over the last 60 years has been brushed aside as plausible other claims to use force not in self-defense but still unilaterally so that's the big picture topic that I want to reflect on and you note from the way I'm setting this up that there's no aim at fine development it is purposefully and unashamedly and unabashedly big picture broad brush scratching the surface but here we go now to start this let me go back to what I I'm looking at sort of the department of war studies kink's college always perceived to be the mission statement michael howard's statement from 1962 why was a department like this needed it was needed to respond to the major question of the day as perceived by him in the early 1960s under what circumstances there could be uh war and force could be used legitimately which was the only way it should be used and that was the last thing defining question for um ensuring a lasting and stable peace now legitimacy is broader than lawfulness and the department of war studies is famous for not being focused on one discipline and assessing war um but lawfulness of course part of the legitimacy debate you see it in all attempts to come up with legitimate uses of force that lawfulness adherence to normative prescriptions that developed in international law is a key part if not the only part of that analysis um now uh the practice since 1945 the debate about lawful uses of force is shaped primarily not exclusively by a debate about the scope of exceptions that exceptionally permit the use of force and that is for a simple reason that international law since 1945 has come to operate with a blanket prohibition we can discuss about exceptions well not exceptions we kind of can discuss about limitations on the fringes of that prohibition does it cover every minimal use of force is that threshold implicit in it those are usefully uh had discussions but we can also rehearse debates from the early days whether the intention or the goal of using force would matter and only certain motivations and certain goals and aims pursued would um would trigger the prima facie breach of international law but i think those are the lesser discussions i mean relevant but compared to the discussions about the scope of exceptions they are the lesser ones because international law relatively i mean dramatically surprisingly and quickly settled on the idea that there could be a blanket breach at least prima facie a blanket prohibition that would cover things that had dominated international relations for thousands of years and everything would be covered by one prohibition hardly accentuated only perhaps nuance through if you want heightened levels of labels such as aggression and otherwise but all caught by a blanket general prohibition on the use of force military force that we grant all the attributes that international lawyers can afford to use to use corgans per entry ground norm perhaps a crime etc etc so now happy to pursue all this in the discussions but i think just marking this for now to say that i think one of the dramatic developments that have been preceding the establishment of the war studies department is how quickly that was uh accepted as a matter of normative principle and if and once that had been accepted it's clear that the onus is always on states using force to prove that an exception applies and as that exception applies i think at least today's perspective is if we're being textualist and if we're being pretty oriented and if we acknowledge the dominance of the charter and shaping the regime we see a very clear distinction between one obviously acknowledged exception self-defense which is ill-defined which is not open-ended which comes with perhaps traditional meanings and understandings but they are not necessarily reflected in the text but we have a blurring of sources debates where we have certainly no clarity of textual meaning and where we have relatively i mean an urgent need to rely on on flanking conditions to rein in what self-defense is we also have the one textually acknowledged exception which comes with extremely positive connotations who would deny the right to be using force and self-defense that is as good as it gets if when it's legitimately discourse self-defense is the best argument you can bring you may be abusing it but self-defense as a notion is wonderful it's much better than necessity or something that comes with limitations so i would say at least from today's perspective we see relatively clearly that in the debate about exceptions we can distinguish between the one universally acknowledged and accepted notion permitting unilateral force namely self-defense and the others which may be candidates but which come with a lot of baggage and where the development of the argument is an uphill struggle because there's so much i mean it's so difficult to justify that in a system that is purposefully complete where you have one textually accepted exception there should be room for others where you have all the labels that was sort of come against you sort of use kogan's primacy of keys etc etc scourge of war so it's a distinction in the way we argue about the exceptions that's a you might say a very broad opening gambit but it sort of sets me up for the point i want to make and perhaps hint at developing in the remainder of the remaining 10 minutes perhaps i think there are two things that we can observe the first i'll observe for today's perspective 2022 i think perhaps as a result of this normative setting or perhaps just by coincidence we see that self-defense claims abound and in a range of settings self-defense dominates the discourse it seems quite broad and covers a range of settings that some of us might intuitively link to self-defense and in other instances it may be more difficult to to make an intuitive link now i would be comprehensive but we have perhaps the sort of the ukraine type setting the state is attacked responds in kind forcibly why should this not be self-defense i think that would have been hardly any discussion around that at any point that disqualifies itself but we've got of course lots of other things but self-defense is invoked even if we go by formal invocations and as in letters to the security council under article 51 elia has told us about one which is by no means the first is a field from the intuitive natural meaning if you want self-defense temporarily removed to recover territory conquered occupied or annexed through the illegal use of force various intervening measures may have taken place to preclude the legitimacy of that self-defense or the self-defense claim in those settings clearly once removed at least one removed from the ukraine situation but by no means the furthest a field we've got debates about self-defense being invoked and i think this is probably now the majority of instances in cases where the attack doesn't originate from another state but from a non-state group terrorist is the obvious example but by no means the only one self-defense against terrorists is a massive debate that has i don't know shaped 20 years of discourse in international law we don't need to rehearse that we can agree to disagree whether that self-defense or not it certainly invoked as such in dozens and hundreds of cases and as i said there's probably a lot more practice invoking self-defense against non-state actors than there is against state actors we have self-defense being invoked to hunt down criminals terrorists or others when the uk wanted justification to kill its nationals 10 years ago what was the basis at least for the use contrabellum it was self-defense because none other was available when president bush the elder at some point was the subject of an attempted assassination and the us felt the need to retaliate on back that this was explained ostensibly as self-defense when nascues rescue when nationals are rescued in dire circumstances there is perhaps an element of another justification but often self-defense is mentioned when states respond on the spot in skirmishes notwithstanding the difficulty of the armed attack threshold sometimes self-defense is mentioned so it's an extremely broad range and this is by no means exhaustive but extremely broad range of settings and factual patterns in which self-defense is alleged it's very popular as a defense now none of this is to say that the invocation is proper and valid some would say if you read say Olivier Cortain or Mary Ellen O'Connell then five of my six examples would not qualify because self-defense may be invoked but invalidly so and the limits would have been transgressed or it was it was fabricated and that's that's a plausible normative argument even though on on individual instances I might disagree the difficulty is that we have relatively little authoritative decision-making on this it's not that self-defense claims are routinely adjudicated upon whether in a court setting or in any other authoritative setting we have a reporting mechanism we have occasional comments on on self invocations we have some debate and and we have occasional judgments by institutions or statements by the UN they don't seem to settle the debate this could be cynically explained that perhaps certain states continue to rely on self-defense and don't like what they hear from the ICJ or from the General Assembly and then simply refuse to give in I think there's a plausible argument that there is clarity in normative statements by the ICJ or an element of clarity in normative statements by the ICJ and the General Assembly or the group of 77 and we should simply take that into account others could say that this is this is all beyond the level of concrete instances and the disputes remain so maybe for now I just I just leave it at this there's a broad range of invoking self-defense it is versatile in the terms I chose for this short intervention now what do we do with this I think there's an obvious perspective and I briefly go through this that there has been normative drift I think those are sort of the often quoted comment by Daniel Bethlehem who was probably happy with some of the normative drift or but at least sort of was not necessarily in the Olivier Corten or Mary Ellen O'Connell campus of ruling all those instances out but there's normative drift that self-defense is invoked in ever broader settings than ever more diverse settings that's one angle you could also take the opposite angle and say there's a real demand for some justification and for some and justification just meets that demand it is a readily available not very concretized exception that permits self-defense and and hence is regularly invoked I'm happy to discuss which one of those angles is right but I wanted to in the remaining five six minutes perhaps speak about something else namely what is the flip side of this if self-defense is invoked more broadly and if there is perhaps normative drift then what is missing or is that really sort of has that really changed and to tell you why I think it has let me take you back 60 years in a time travel to the days when the department of war studies was set up and that's just I mean I'm not sort of proposing to sort of do any sort of serious analysis of the scholarship at the time or the issues at the time but let's do a superficial assessment of the debate at the time and I think the basic point I want to make is 60 years ago when the department of war studies was set up there was a much there was a diversity of invocations of justification for use of force but they were far less focused on self-defense self-defense at the time of course even though the text of the charter was the same was relevant and was the most relevant of the various instances but on the fringes and perhaps not just on the fringes of the debate you had plausible alternative justifications for using unilateral force now what so I think perhaps rather than seeing normative drift and self-defense or in addition to seeing normative drift and self-defense we can also observe one level removed and one level more abstract normative stratification in the focus exclusive focus nowadays on self-defense where 60 years ago we had a more diverse set of issues that were debated in in the use contra vellum to just give you an example of what I mean by this because if I say it's a trite point but I think it's quite significant to go back 60 years in time and to look at the debate you had plausible discussions about a range of other justifications. 1962 I think it's sort of 1962-63 the UK invoked famously a doctrine of forcible reprisals justifying some reactions and I think in the Yemen strikes against the Yemen it was famously rebuked by the Security Council in 1963-1964 in cases that are constantly cited by everyone as evidence for the prohibition on armed reprisals under contemporary international law. You had a whole range of questions going to the use of force in colonial and decolonial settings outside the scope of self-defense. You had in the 1960s the resurgence of the debate about uses of force in a very specific discreet you might say setting hot pursuit on on the seas resulting just a few years after the setting up of the Department of War Studies in the publication of the major works still to this day on hot pursuit by Pulanzas in the mid 1960s. You had from my own sort of German upbringings and sort of in legal education you had in 1963 an article published by famous German international lawyer Darm on the shooting down of aircraft prompted by some recent incident at the time and self-defense wasn't mentioned. Why could you shoot down aircraft transgressing into your airspace not because of any ambitious construction or liberal construction of the armed attack requirement? You could do it as a defense of your air sovereignty and that was relied on and put forward plausibly as a separate self-standing title for using limited ranges of force defensively. That's before we get to nationals and they're rescuing abroad and that's before we get to what is perhaps in some ways the most ingenuous and bizarre titles perceived titles for using force outside self-defense the idea that you would be able to extend the hot pursuit argument from the seas to the land it could swap on to the land and could be used hot pursuit something like hot pursuit to pursue um bands on uh on the territory of another state something that had happened frequently that's covered in the Brownlee and powered debates of the 50s and 60s but that in the 60s late 60s and 70s would be put forward as a doctrine of hot pursuit on land by South Australia by Portugal who who relied on that limited very curious ground for using counter force to justify incursions into from South Africa into frontline states from Portuguese territory into neighboring states in pursuit of armed bands waging anti-colonial decolonial struggles. Now all this I would say and I'm sure there's much more but all this to me sounds like echoes if we compare to today's debate from a very very distant past today none of these claims would be I mean hot pursuit still exists but some of the other claims are simply not made they're not plausible um hot pursuit on land was put forward but I mean the minute the minute something was put forward by South Africa in the 70s and 80s you probably could bet on it that it would not really sort of go down well with the international community so this has been given up um armed defensive force to protect your airspace I don't know is that really it armed reprisals you might say that what happens today looks like that but can you make a plausible argument that would withstand scrutiny in in legal debates nowadays probably not at least it's not really it's not really going very far so it seems to me and this is very very simplified of course but that we have seen in parallel to the normative drift and self-defense we've seen a normative stratification and in the debate that is not fringy but let's say plausible self-defense is now used for all sorts of instances of of of counter force as almost the last exception standing so I think we have these two trends um on the one hand self-defense being blurry and ever more blurry on the other hand a far more orderly you could say debate about exceptions to force because everything is channeled through self-defense that's the basic point I want to put to you and which I'm happy to discuss I don't want to preempt the discussion but maybe just initiate it with or put it on on some track with two thoughts I think there's far too little discussion about the correlation between the possible correlation between those two it may be I mean one cynical realist claim that you could make is that there's a demand for using force whatever the law says in certain settings and that demand will find its its legal avenues and legal instantiations and arguments and the more we make it difficult to rely on or the more the discourse agrees on self-defense being the one and only defense uh the more that one and only defense now has to then used to cater to all sorts of different needs whether they plausibly and intuitively relate to notions of self-defense or not so if you want the shrinking of the normative arsenal of arguments that could be made would causally lead to a blurry notion of self-defense so and so we're paying the price for a more orderly macro level by having to deal with a very disorderly micro argument on self-defense that's one angle and I'd be curious to hear people's thoughts on this the other angle is about the stakes in this uh I think I'm I'm comfortable with um the sort of um beware of admitting uh extra grounds of sort of other than self-defense like it's very difficult I think plausibly to argue that there should be unwritten exception in the use contrabellum um but I do think the one price we're paying is that by channeling everything through self-defense a differently I mean an exception that is so different difficult to police and that is so positively connotated I think the risk is that we're uh making it more difficult to hedge in the scope of the force that is being used and sometimes this is sort of maybe a devil's advocate thought I sometimes wish that we could have conducted the whole debate about self-defense against terrorists and non-state actors through the prism of hot pursuit of course unthinkable and you might say purely hypothetical because it's been roundly and resolutely and robustly rebuffed but just imagine it was always put forward as a narrow defense it was always put forward as temporarily limited it was almost it was it was put forward as something that was geographically limited on the spot I think I mean for somebody who's been willing to engage with an argument that self-defense could be used to respond to terrorist threat threats I've been preoccupied with the limitless nature of the counter force that you permit I think other grounds that were more narrowly tailored to particular circumstances would have made it a lot more difficult a lot more easy a lot easier to rein in the scope of force or normatively to come up with arguments that constrain the force that is being used now that's a hypothetical because I'm not suggesting that we should rehash whole debates about hot pursuit on land it's just an illustration that I think the choice of self-defense as the one the one vehicle or the one instrument or the one tool through which we channel all our debates about permissible unilateral counter force comes at a price and I think in the price in the sense of self-defense that it is a sort of we're waging a debate on the terrain of a of a defense that is difficult to police and difficult to to limit because it is so positively connotated I leave it at that looking forward to our discussion on this and curious but above all curious to hear what Fred and the Vika have to present in their in their talks many thanks thank you very much Christian that was again a really an excellent presentation very very triggering lots of thinking and thank you very much for engaging so much you know with the with the worst that is department and which is an interdisciplinary department so when you mentioned also the realist approach you know I thought okay it's not only about law I was trying to find a kind of analogy you know about this correlation you say you know that we channel everything through self-defense you know and it's it's it's quite it's really fascinating I will think a little bit more about that but I think this is a very interesting point to for further discussion now on that note thank you very much I would like to give the the floor to Frederick McGrath professor McGrath from McGill University uh Fred will talk about another provocative topic he's not I won't call it provocative what I would say intriguing topic he is working on on prisoners of war race and other issues and Fred you have the floor thank you very much thank you very much Maria very grateful for the for the opportunity um and glad to present today something that is still fairly early in the making I'll be very honest with you my delivery won't be quite as authoritative as Christians because I'm still trying to work the argument out as I go but I think there's something there so it's uh it's maybe a provocative title it's certainly a long title which hints at my uh you know in fact that I'm trying to do several things with this uh with this project so let me maybe uh backtrack a little and suggest one of the uh starting points is kind of frustration lingering frustration with how we conceive of a relationship between international humanitarian law and uh human rights uh as sort of particularly you know the tribal international lawyers um you know reducing this as sort of very functionalist uh question and maybe not doing justice to the complex ways in which the two have interacted uh historically have continued to uh interact so uh you know and in order to transcend that uh narrow uh doctrinal approach I think we need to uh you know further the turn to uh history and uh you know look beyond sort of broad abstract debates about how norms relate to each other uh and look in in a little more detail uh at uh practices in in and during warfare uh that give us clues about how the two are sort of articulated and and uh you know have interact with each other so uh I think I saw earlier that Boyd was amongst the audience so I take one of my cues from his uh earlier agile article uh in which I think very interestingly he uncovered the extent to which human rights uh were closer to the heart of contemporary international humanitarian law than is typically understood uh and I I take my cue from that and I don't I agree with that uh intuition but what I want to uh suggest is that uh paradoxically and counter-intuitively uh international humanitarian law itself was much more crucial to the rise of uh human rights uh than is typically assumed so and that's a bit counter-intuitive because I think we think of international humanitarian law as the kind of parent-poor-revent relationship and always lagging behind and I want to suggest that at least in some very specific context international humanitarian law uh was a place of early exploration of core human rights norms uh and particularly what I want to emphasize today is the role of international humanitarian law in struggling with uh and producing meaning around uh the prohibition of racial discrimination um and I want to do so by a sort of uh a close examination of something that uh you know happens behind the uh front lines and but is really crucial which is uh prisoners of war and and particularly prisoners of prison of war camps the very intrigue by the camp uh as a place where soldiers of various national and ethnic and religious and racial origins are kind of thrust together uh and where questions are right for detaining powers for commanders uh very concrete questions about uh how you know the extent to which these truths should be mixed or the extent to which certain principles might recommend uh against mixing berm and and uh as I'll try to show this this has been uh a question that has been present throughout the 20th century as war and participation in warfare became uh more ethnically and racially diversified so um so you know this also goes against the I think by the way Teodor Meron's idea of the human humanization of international humanitarian law right so the idea of it at best international humanitarian law was sort of late in its development absorbed norms from human rights I think you know in some ways prisoner of war camps raised early on maybe a couple of decades early questions but uh could not possibly be addressed uh domestically and so uh we're kind of interesting prisms uh to explore questions about uh racial equality in particular so there's a whole history to this and and the paper as I'm conceiving it right now is is fairly chronological I saw early developments in the civil war uh when um the use by the union of African American troops led to a kind of breakdown of the parole and prisoner exchange process the union insisted that all prisoners whether they were whether they were black or white should be treated for same for exchange purposes and the confederacy uh predictably insisted that actually uh blacks you know should be treated as runaway slaves and return to their owners uh so this this was not you know uh conclusive but but clearly uh you know the union wanted to have all its soldiers to be treated for same for purposes of international humanitarian law whereas the confederacy uh wanted to uh you know maintain a stark division between blacks and and whites so there's a whole debate of uh by historians so I won't get into here on how uh whether black union prisoners of war were treated worse than uh white prisoners of war uh and general answer is yes somewhat although maybe not as badly as uh one might expect and I think this as as you'll see this will lead me to suggest that international humanitarian law uh paradoxically provided uh higher protections than uh obviously a sort of domestic law right uh the usage as a for uh in the least you know these were considered combatants and there was a sort of the the the pool of reciprocity etc which uh kind of briefly highlighted the for relatively preferred uh treatment so um I there's a lot of historical work to do and I'm I'm I'm you know relying on work that has been done by uh by others when the first world war introduced a really dramatic change in that for the first time colonial troops were deployed en masse to the battlefields particularly as some imperial powers overcame their resistance to do this and and uh uh you know the british were uh uh you know more resistant than the french to deploy indian troops on the front line the french by comparison uh were sort of very keen on deploying the tirayeur sinegale and the suave and various other african troops in uh verdin and of course you know this was all very ambiguous but the french was this was doubly sold as part of a civilizing mission uh on the one hand the french argument was that colonial you know african troops had been civilized enough that they could now fight in uh europe uh you know and that was obviously in in uh contra-distinction to what had you know traditionally been the belief namely that um you know savage uh soldiers could not possibly uh uh participated european warfare on an equal footing uh and uh in their sort of uh let's say i mean this this french civilizational uh superiority as indicated by france's ability to civilize uh african troops then gave france a kind of civilizational edge in its effort to civilize the barbarian huns and uh you know their turkic uh allies uh so this had an impact i think on on um how prisoners of war were treated during the first world war um on both sides in in uh uh well i mean mostly on the german side uh uh so the germans made uh prisoners of war from uh you know white but also african troops uh muslim troops uh from north africa uh there was a kind of in in in germany this led to a sort of anthropological uh and kind of biometric enthusiasm so uh you know um uh colonial troops where uh sort of dissected for their particular features and this you know it was a kind of an opportunity uh in a sense they were of course they tend to be portrayed as particularly uh savage but nonetheless uh colonial troops were treated uh remarkably well in uh in germany uh aside from this anthropological research and one of the reasons may have been german efforts to rally muslim troops and uh uh uh encourage french troops to uh join uh the german turkish alliance so for that purpose the germans built the sossen camp close to berlin where one of the first mosques ever built in germany was uh constructed and uh the plan was largely unsuccessful uh the french troops sort of prioritized their um french sort of imperial allegiance over uh solid that you know the the temptation of fighting for the turks but this was a sort of interesting precedent now um the next move by the germans was really to sort of annoy the british and the french to uh then enthusiastically mix troops of different uh geographic and racial provenance uh together uh and uh this was in protest of the british then uh starting to send uh uh indian troops in particular to the the front and um the the british protested this quite uh uh forcefully uh and uh uh you know arguing that that this was um you know on various grounds that this was uh uh um uh uncalled for and that white soldiers should not have to share barracks with uh indian soldiers and in fact the british threatened to do the same and may threaten to uh mix german prisoners of war uh with turkish prisoners of war uh which to you know which the germans reacted to with horror uh and so they desisted from their own uh practice making sure that you know so of course troops were segregated by nationality but even within or the side they fought on but then quite clearly uh a lot of different accommodation based on their ethnicity okay so um this is kind of a first world war background and i think it's important to uh to understand because it framed then conversations about the laws of war and race early conversations about race you know if implicit not not in today's language but but in the in the interwar uh language of the time uh that went on for uh quite some time in which we're quite indecisive so there was in the early 20s and i draw heavily on timothy shora's uh kind of uh pioneering work on this uh forgotten neglected episode in the history of the laws of war uh there was a lot of back and forth and uh you know no one was really strongly committed uh uh either way it seemed that at first certainly there's the idea of it uh one should not be mixed with other nationalities even though they were fighting on the same side was less clear whether there should be uh a a an obligation to racially segregate or a prohibition of racially segregating uh a part of a background was german um you know uh anxiety about you know colonial troops in verour and uh you know uh um uh you know having children with uh german woman etc so that you know the whole nazi um hysteria about uh sort of uh mixing of races etc uh in the event to to make this short because i could go on the uh uh 1929 convention and i have to say this is like really until timothy shora started working on this just something that really uh uh no one was paying much attention to uh uh article nine says belligerent shawl as so far as possible avoid assembling in a single camp prisoners of different races or nationalities okay so quite strikingly at the heart of international matter law in 1929 uh a kind of obligation to do what one can to essentially maintain racial segregation that you know this is not uh you know what they teach you in the i hl 101 but i think really quite striking now there were some uh there was a mix of reasons for this i mean one of them lord filimore and others british lawyers after the first world war uh thought this was the kind of prophylactic health measure so you don't want to uh mix troops uh that had served together and but separately and which might have been contaminated by typhus or tuberculosis to uh then be together so they there's that classic i mean you know all those fucodian sort of uh you know kind of health governance uh but they were also i think just under the surface uh more sort of uh it's communitarian uh uh argument so one draft said that you know father's brothers and sons should be uh interned together ideally uh but then that sort of you know my extension there was a sense that uh you know people of the same uh you know skin collar should ideally be uh uh together so that again is the setting right inherited from the first world world war for the second world war right um and uh as you know the uh germ Germans were incensed by france's use of colonial troops they were well documented instances of massacres of tirayeur sinegale in 1940 by the ss um and uh but the question that arose in france was what to do with captured colonial troops from you know senegal and morocco etc most french soldiers were released uh after france's defeat and and many sort of went back to their families but this that option didn't seem available in the case of colonial troops partly for logistical and military reasons partly because you know they've been sent back to africa they might easily have taken up arms uh with the free french who is starting to make inroads into uh france's empire so about 70 000 were detained from senegal madagascar and into china uh and and of course north africa and west africa uh and sent to uh front star lugs which were sort of prisoner for camps you know not not uh in in germany but in sort of the occupied uh countries and um the uh so you know what's the record of of those prisoners of war camps right so um you know i i i think in some ways at least some of the um basic humanitarian protections held good uh there were you know some who were released some colonial troops were released for propaganda purposes and you know uh i think the the conventions uh the 1929 convention provided a modicum uh protection there's also um it's been said that socialization uh in mixed camps particularly among south africans had uh you know some positive effects in terms of africans and english speakers but also black troops uh you know sort of learning to uh live together um and there are certainly instances of white officers for example french officers taking the defense of their troops against bad treatment having said that uh treatment of colonial troops was generally harsh uh the uh africans were targeted for uh you know military projects working in in aerodromes and ammunition production that were dangerous and probably in violation of the uh Geneva conventions and most importantly i think uh the uh prisoner for camps kind of revealed what i would describe as a sort of internal uh racism involved so the racism of in mostly in that case uh the french themselves uh in how they dealt uh with their own troops so one quite striking thing that happened uh in uh 1943 i believe was that the germans decided to entrust the uh guarding of colonial true prisoner for camps to the uh collaborationist french themselves so the french ended up sending kind of white sentence sentries to guard their own troops as part of uh collaboration um and you know this was uh against a background where vichy was particularly adamant that uh you know colonial troops should not be allowed uh out of camps lest they contaminate french woman etc and of course this continued to some extent of deliberation with you know for example the repression of senegalese soldiers who protested uh the fact that they hadn't been paid for all their years of captivity and sort of many were were killed upon being returned many were in fact detained you know and gunpoint by the free french uh in uh 1945 but another interesting dimension to all of this i don't want to speak for too long uh and so a prisoner of war camps acting as revelators of internal racism was the us experience so the us hosted on its territory uh you know in the midwest uh in the west uh quite large numbers of italian and us uh prison and german prisoners of war and uh black gis where uh struck and we have considerable testimony to that effect by the fact that uh german and italian prisoners of war were treated better than they were right so many instances of uh uh black uh soldiers finding you know instances of fraternization uh in uh between the captors and prisoners of war um you know enjoying their common whiteness as it were um even as uh black soldiers were uh prohibited as a result of uh you know us segregation from entering areas that were for whites uh only so maybe i'll finish with uh the kind of fascinating question i uh quite related uh for jewish prisoners of war during the uh second world war so uh i was in many uh us uh british french polish jews fought in the second world war under you know the flags of their respective countries uh up to 9 000 us jewish prisoners of war were detained in germany there's a lot of nervousness among uh jewish uh uh us soldiers about you know whether their dog tags might reveal their jewishness what they should do um and uh you know some were sent to concentration camps uh about 350 for example were sent to berger from various uh stalags uh the us after the war told them to sort of you know keep silent about that experience and i think the fear was that the americans said in some cases not done enough to intervene and protect them as uh us commandments rather than uh uh jews uh you know the icrc was also much criticized by the world jewish congress as having been a bit uh you know dilettante about that danger and uh particularly in the final days of the war uh that the um you know many interventions were made to the icrc to say don't allow the germans to separate polish jewish prisoners of war we know exactly where this is uh headed and you know the icrc was like well you know of a 1929 convention but it isn't super clear that you know you can't do that um but you know having said that what's really fascinating is not maybe that story but that at least for and i should emphasize this for western uh uh jewish prisoners of war um you know many uh uh were not uh deported were not um uh you know separated from uh their fellow uh servicemen and of course they ended up being you know much better treated uh than uh their relatives in europe so french uh jewish prisoners of war who survived uh the the war when their families in france uh did it uh and now that's i think partly because uh occasionally um you know uh officers sort of stood stood by their man and you know it was a famous incident where u.s army uh sergeant roddy edmonds ordered uh prisoners in in his dialogue to sort of uh after the germans had asked uh for jewish soldiers to uh identify themselves you know and all uh men stood up and say well all jews and as a result the germans sort of gave up on uh at least for a time on that particular attempt so anyhow you know i i i'm not sure where this is going but i i think um there's there's interesting post-war developments that one could uh look into i mean uh um uh you know uh south africa and angola sort of angola taking um uh white south africa and prisoners of war and how that was really a shock at the time uh you know in terms of kind of reversing uh or challenging racial hierarchies uh i you know to me it's really interesting bottom line that international humanitarian nor first has a history of dealing with these questions which is very intimate very problematic uh and quite uh forgotten second but bizarrely as a result of being artifacts of these weird international humanitarian British uh protections uh you know racialized combatants occasionally benefited from better treatment than they might uh then uh non-combatants might have or even than they might have benefited from uh at home in their own country and i think that's a legacy that you know is worth uh re-exploring uh re you know critiquing and re-appropriating at the same time because i think uh it shows that you know not all these conversations where first and foremost human rights conversations some of them occurred uh you know in in in the midst of war thank you very much thank you very much Fred uh again uh both presentations you know they just reflect what i was i said at the beginning ways of seeing provides you and christian provide us with a different way of seeing things and especially you know when you were mentioning the humanization of international humanitarian law going back and forth it shows a more complex than new ones uh history or picture uh and uh i'm looking forward to to reading your where it goes all these things but definitely you know race and IHL it's something underdeveloped so thanks a lot for that now on that note uh Devika will uh conclude this panel hi Devika th