1 00:00:00,970 --> 00:00:06,970 This is the ethics law conflict seminar discussion panel discussion on the legacy of 911. 2 00:00:07,330 --> 00:00:16,600 And it's worth perhaps reminding you what's Eli Court ethics conflicts for doing is an interdisciplinary research program that aims to strengthen law, 3 00:00:16,660 --> 00:00:21,580 norms and institutions to restrain, regulate and prevent conflict. 4 00:00:22,270 --> 00:00:24,969 Drawing on the disciplines of philosophy, law and international relations, 5 00:00:24,970 --> 00:00:33,360 Elac seeks to develop a more sophisticated framework of rules and stronger forms of international authority relating to armed conflicts. 6 00:00:33,910 --> 00:00:38,890 Research activity addresses all aspects of armed conflict, including the recourse to war, 7 00:00:39,190 --> 00:00:44,410 the conduct of war and post-conflict governance, transition and reconstruction. 8 00:00:44,920 --> 00:00:49,210 The themes of the program are broadly the prevention and responsibility to prevent, 9 00:00:49,420 --> 00:00:55,690 to protect proportionality and the laws of war and international criminal law and transitional justice, 10 00:00:56,290 --> 00:00:59,890 and of course, also nuclear non-proliferation and opportunities for disarmament. 11 00:01:00,700 --> 00:01:06,429 This program has a close relationship with the change in current warfare program, and I'm the deputy director of that program, Dr. Robert Johnson. 12 00:01:06,430 --> 00:01:14,740 If you've not met before, this panel is going to consider the overall theme of really how Afghanistan has changed in catch of war, 13 00:01:14,980 --> 00:01:18,010 because of course, that was the starting point in the post 911 legacy. 14 00:01:18,520 --> 00:01:22,000 But more broadly, how this has raised new ethical and legal issues. 15 00:01:22,420 --> 00:01:27,580 The speakers I'll introduce in just a moment will speak for between ten and 15 minutes each, and there'll be an opportunity for Q&A. 16 00:01:27,700 --> 00:01:31,659 And I'll try my best to guide some of these discussion points. The speakers very briefly. 17 00:01:31,660 --> 00:01:37,030 First of all, David Reding, who's the co-director and senior research fellow of Iraq here at Oxford, 18 00:01:37,510 --> 00:01:41,290 has written, of course, many, many books, and I look through his publication list on the website. 19 00:01:41,290 --> 00:01:45,640 It is a quite a repeat fest of writing. 20 00:01:46,150 --> 00:01:54,190 But say suffice to say that some amongst the most seminal works that he's done, he's written Just an Unjust War, is with Henry Schein about the moral, 21 00:01:54,190 --> 00:02:01,299 legal status of soldiers with Oxford University Press and has most recently been the author of Morality and Law in War in Civil Show Business. 22 00:02:01,300 --> 00:02:05,950 Houston's edited the volume The Changing Character of War, published in Oxford 2010. 23 00:02:06,760 --> 00:02:12,130 His next can be produced well, they may have already come out actually ending war in ethics and international affairs, 24 00:02:12,910 --> 00:02:16,450 which we're pushing very much, because that seems to be sort of the moment. 25 00:02:17,680 --> 00:02:23,110 And he will look at some of the areas of Afghanistan, including the broader theme of developments in law, morality today. 26 00:02:23,620 --> 00:02:29,590 We've also got this Jennifer Welsh, professor in international oceans here in Oxford and at Somerville College, 27 00:02:30,100 --> 00:02:37,480 who's been an editor with others of the United Nations Security Council and War published by University Press in 2008. 28 00:02:37,990 --> 00:02:41,860 Also civilian protection in Libya and putting coercion controversy back into the right to protect, 29 00:02:42,760 --> 00:02:45,700 which is what has come out and is coming out in ethics, 30 00:02:45,700 --> 00:02:52,120 come out has come out in ethics and international affairs and also has written in international affairs an altar case of pluralism, 31 00:02:52,120 --> 00:02:54,490 reassessing Vincent's views on humanitarian intervention. 32 00:02:54,580 --> 00:03:03,250 I'm sure it's very well my talk today and also not least up her country, who's not only a university lecturer in public international law, 33 00:03:03,370 --> 00:03:07,960 in fact of law, but also Yemeni had a fellow at St Peter's College here, Oxford. 34 00:03:08,290 --> 00:03:12,940 He's written a number of things to all of which are pertinent to its discussion, 35 00:03:13,150 --> 00:03:16,930 including sources of international criminal law in the Oxford Companion to 36 00:03:16,930 --> 00:03:21,999 International Criminal Justice and also Working Pace paper on prosecuting aggression, 37 00:03:22,000 --> 00:03:27,709 the consent problem and the role of the Security Council. And all of them have a great deal of richness to offer. 38 00:03:27,710 --> 00:03:37,000 I say to tonight's discussion. So I'm going to call, first of all, on Press Welsh to get a started on this issue of the legacy of 9/11. 39 00:03:37,150 --> 00:03:40,240 Everything. Well, thanks very much and thanks for coming. 40 00:03:40,240 --> 00:03:49,690 And for those of you that it's your first visit to an Elac event, I hope we see lots more of you over the course of the term. 41 00:03:49,690 --> 00:03:54,069 We've got some flyers at the front of the room and we have an active website. 42 00:03:54,070 --> 00:04:00,010 So I really welcome you to come to as many events as your schedule allows you to. 43 00:04:00,790 --> 00:04:08,830 I'm just going to start by challenging one commentator's view of 911, which some of you might have seen. 44 00:04:09,790 --> 00:04:16,870 And that was Francis Fukuyama's op ed in the paper right around the time of 911 where he said, 45 00:04:17,200 --> 00:04:22,840 really, I'm paraphrasing, but really this event wasn't as big a deal as we all thought it was. 46 00:04:23,320 --> 00:04:28,300 The much bigger, important structural change in international politics over the last, 47 00:04:28,530 --> 00:04:33,850 when we look back over 50 years will have been the rise of China, not 911. 48 00:04:34,720 --> 00:04:40,780 But nonetheless, I want to suggest that that 911 and its aftermath has had an enormous impact, 49 00:04:41,740 --> 00:04:49,420 if not in in strictly structural ways, although we could argue it has there, too, in terms of the international system as a whole, 50 00:04:49,420 --> 00:04:52,240 certainly with respect to ethics, 51 00:04:52,390 --> 00:05:00,070 law and armed conflict and the issues that we want to talk about tonight and given we don't have a lot of time, I wanted to sort of pull out. 52 00:05:00,760 --> 00:05:05,140 What I'm going to suggest to you are two kind of boomerang effects. 53 00:05:05,560 --> 00:05:14,440 I'm going to call them boomerangs. And that I think we went from one position to another position and back again the way that boomerangs do. 54 00:05:14,980 --> 00:05:18,160 The first boomerang I think I'm more comfortable with than the second one. 55 00:05:18,160 --> 00:05:25,150 The second one, I'm not quite sure it is a boomerang. And so I'd be interested in your in your thoughts on that. 56 00:05:26,320 --> 00:05:36,280 So the first boomerang is really around the issue of authorisation for the use of force in international politics. 57 00:05:37,090 --> 00:05:46,750 And I think the boomerang here is that we went from the immediate aftermath of 911 from a firm commitment to multilateralism, 58 00:05:47,890 --> 00:05:54,520 to out here to more unilateralism and arguably back again to multilateralism. 59 00:05:55,210 --> 00:05:58,360 So let me just elaborate a little bit on why what I mean. 60 00:06:00,040 --> 00:06:05,349 So the Security Council resolution that was passed the day after the terrorist attacks, 61 00:06:05,350 --> 00:06:16,030 1368, was a unanimous statement of support for efforts to respond against those who had, 62 00:06:16,030 --> 00:06:23,440 in the words of the Security Council Resolution eight and supported or harboured the perpetrators of the 911 attacks. 63 00:06:23,920 --> 00:06:29,350 And in addition to that, you may recall, in addition to the unanimous Security Council resolution, NAITO, 64 00:06:29,350 --> 00:06:39,640 for the first time in its history, invoked Article five of the North Atlantic Treaty that an attack on one was an attack on all. 65 00:06:40,360 --> 00:06:44,890 And so there was an enormous show of multilateral support for action. 66 00:06:45,280 --> 00:06:46,510 Interestingly, though, 67 00:06:47,830 --> 00:06:58,370 the United States did not at that point take up the implicit offer of a Chapter seven authorised resolution for its its subsequent actions. 68 00:06:58,990 --> 00:07:04,630 It wanted to maintain Flip's flexibility in terms of how it would wage whatever action that it took. 69 00:07:05,410 --> 00:07:10,860 And at that point, either it didn't seek the explicit assistance of NATO either. 70 00:07:10,870 --> 00:07:16,120 Instead, what you had about a month later, October 7th, almost ten years to the day, 71 00:07:16,270 --> 00:07:23,740 was the U.S. informing the Security Council of its exercise of the right of self-defence. 72 00:07:24,670 --> 00:07:35,110 And, of course, that was a more unilateral or independent action involving the use of force with some close allies, 73 00:07:35,110 --> 00:07:38,710 including Canada, which participated in that very early stage. 74 00:07:40,180 --> 00:07:47,200 But, of course, as we know during this period, we saw later on in the case of Iraq, 75 00:07:47,440 --> 00:07:51,340 although there's been lots of debate about the link between Iraq and 911, 76 00:07:51,880 --> 00:08:01,750 we saw another unilateral use of force in this post 911 period without authorisation of the Security Council. 77 00:08:02,470 --> 00:08:05,650 Yet I think ten years on, when we look back, 78 00:08:06,250 --> 00:08:14,320 we see that multilateral authorisation and multilateral support for the use of force is more important than ever. 79 00:08:14,980 --> 00:08:17,320 So there is the boomerang effect. 80 00:08:18,010 --> 00:08:32,200 Of course, Iraq, which began unilaterally, became gradually after the cessation of official sort of military hostilities under the rubric of the U.N., 81 00:08:32,200 --> 00:08:36,220 the U.N. was called in to provide legitimacy to the occupation authority. 82 00:08:36,910 --> 00:08:44,830 Of course, Naito, as you all know, took on a huge role in Afghanistan through ISAF. 83 00:08:45,580 --> 00:08:54,740 And indeed, subsequently, we've seen actions involving the use of force which have required Security Council authorisation. 84 00:08:54,760 --> 00:09:01,479 So I was struck by the fact that in the days leading up to the recent action that was taken in Libya, 85 00:09:01,480 --> 00:09:10,180 Natal made very clear that it would not act unless there was a clear legal basis, and that legal basis was Security Council authorisation. 86 00:09:11,350 --> 00:09:16,629 So we moved from strong multilateral support, which in fact, ironically, 87 00:09:16,630 --> 00:09:25,870 the United States didn't take up in quite the way that might have been expected in the early stages to some unilateral shows of force, 88 00:09:25,930 --> 00:09:34,240 back to a practice within international society where multilateral endorsement is hugely important. 89 00:09:34,600 --> 00:09:41,980 Now, I wouldn't say that we can talk about this in discussion that this multilateral endorsement or authorisation is unproblematic. 90 00:09:42,430 --> 00:09:51,340 It's problematic in all kinds of ways which relate to the composition of the council itself, the failure to agree, as we've seen in in Syria. 91 00:09:52,420 --> 00:10:00,400 And we've also seen, of course, the incredible burden placed on Nito in terms of multilateral action and the questions that arise. 92 00:10:00,430 --> 00:10:09,220 Within multilateral action about burden sharing. But nonetheless, that's kind of my first boomerang that we've sort of seen that effect. 93 00:10:10,630 --> 00:10:16,490 The second is a is a boomerang in terms of the rationale for the use of force. 94 00:10:17,830 --> 00:10:23,440 We moved from in the immediate aftermath of 911. 95 00:10:24,190 --> 00:10:32,530 From a standpoint of reprisal and self-defence to an expansive war against terror. 96 00:10:33,820 --> 00:10:36,460 And as I'll explain in a moment, accompanying that, 97 00:10:36,820 --> 00:10:48,160 a huge emphasis on nation building back to potentially a must, a much more modest approach to war aims. 98 00:10:49,090 --> 00:10:59,080 Now, if you cast your mind back and I was reminded of this because I found on my computer an unfinished op ed that I had started right after 911, 99 00:11:00,280 --> 00:11:06,340 railing against what the U.S., if you will, for those of you who remember this, called the mission in the first couple of weeks, 100 00:11:06,820 --> 00:11:10,120 do you remember it started off as Operation Infinite Justice? 101 00:11:10,150 --> 00:11:19,510 Yes. And there was all sorts of opposition and criticism, particularly from Muslim groups in the United States, 102 00:11:19,510 --> 00:11:22,150 who said, you know, it's only God that meets our justice. 103 00:11:23,050 --> 00:11:30,490 And of course, so they changed the name very quickly from Infinite Justice to operating Operation Enduring Freedom. 104 00:11:31,660 --> 00:11:34,720 But the change was more than in the name. 105 00:11:35,860 --> 00:11:38,919 There was a change in the mission itself. 106 00:11:38,920 --> 00:11:48,670 And it and it struck me that George Bush, who had campaigned during his time as the Republican nominee against nation building, 107 00:11:48,820 --> 00:11:51,550 explicitly said, you know, we don't do nation building. 108 00:11:53,080 --> 00:12:07,930 Very quickly became by the end of October 2001, embracing nation building as a part of the the war aims in Afghanistan. 109 00:12:08,410 --> 00:12:15,880 And in addition to that, humanitarian concerns became very central to the evolving rationale. 110 00:12:16,720 --> 00:12:20,650 Now, I think there were two reasons for that. 111 00:12:22,120 --> 00:12:33,939 One, having to do with an evolution in American thinking itself about what was required to to win this war and a belief that sort of 112 00:12:33,940 --> 00:12:40,490 harkened back to some of the thinking that had gone on and that in the course of counterinsurgency campaigns decades earlier, 113 00:12:40,520 --> 00:12:49,570 about winning hearts and minds of the Afghans. And so humanitarian rationale became very quickly a huge part of the justification, 114 00:12:50,890 --> 00:12:58,390 but also because a number of other states were becoming involved in the Afghan campaign, particularly with the creation of ISAF. 115 00:12:58,990 --> 00:13:03,309 And when you think about that development and of course, 116 00:13:03,310 --> 00:13:09,430 a big part of the Afghanistan war has been the involvement of U.S. allies in very significant 117 00:13:09,430 --> 00:13:18,220 ways that they themselves needed to embrace a much wider conception of their national interest. 118 00:13:18,670 --> 00:13:23,920 And I think this is something that's quite remarkable about the last decade, 119 00:13:24,490 --> 00:13:33,250 is how the national interest as a rationale for action, military or otherwise, was expanded in this period. 120 00:13:34,360 --> 00:13:41,799 Of course, it was expanded in the sense that an attack on that was harboured in one region of 121 00:13:41,800 --> 00:13:47,830 the world could literally activate the armed forces of states like Germany can, 122 00:13:47,830 --> 00:13:51,730 and not just the United States in such a dramatic way. 123 00:13:52,240 --> 00:14:00,639 But there was also, if you look at the national security strategies of the U.S., the European Union, Canada, Germany, 124 00:14:00,640 --> 00:14:07,030 how they began to talk about the national interest and the impact of transnational threats like terrorism, 125 00:14:07,270 --> 00:14:13,630 globalisation, that it was no longer threats close to home that activated the national interest. 126 00:14:14,710 --> 00:14:20,530 But there was also, even if you were to to strip away security threats, 127 00:14:21,370 --> 00:14:27,120 a civilizational message that came through some of this expansion of the national interest. 128 00:14:27,130 --> 00:14:33,280 That answer and this was very much Tony Blair's, I think, approach to the expansion of the national interest. 129 00:14:33,430 --> 00:14:34,719 And it began with Kosovo, 130 00:14:34,720 --> 00:14:44,710 but it certainly expanded after 911 that as a civilised nation the UK had to respond to uncivilised acts wherever they occur. 131 00:14:46,850 --> 00:14:52,850 Now, this this led to a number of dimensions, which I think Daniel and David want to talk about. 132 00:14:53,960 --> 00:14:59,930 The one that I just want to flag that I think is hugely important for thinking about how 911 and its aftermath changed. 133 00:14:59,930 --> 00:15:09,350 The character of war was, of course, the the on the ground activities that were associated with nation building and a humanitarian war. 134 00:15:10,100 --> 00:15:15,860 And in particular, what was very much in vogue, particularly in the in the mid 2000, 135 00:15:16,250 --> 00:15:24,770 the joining together of defence diplomacy and development that on the ground now you had military officers, 136 00:15:25,280 --> 00:15:31,790 development agency representatives and diplomats all engaged in a common enterprise. 137 00:15:32,300 --> 00:15:38,959 And this had enormous implications for how those organisations worked together for what was in the remit of their activity. 138 00:15:38,960 --> 00:15:49,220 And I'm thinking particularly here, of development agencies who hadn't engaged in such fraught security environments in quite the same way. 139 00:15:49,670 --> 00:15:57,499 But it also meant for some development and humanitarian organisations that they're on militarised space that they were used 140 00:15:57,500 --> 00:16:06,320 to operating in became very securitised and there were all kinds of implications of that which were still living with. 141 00:16:07,280 --> 00:16:15,440 Now, I guess the question I have for all of you that I've been thinking about is, has that been a boomerang, too? 142 00:16:16,470 --> 00:16:25,820 Are we moving from a much more self-defence reprisal rationale to begin with for the waging of military force, 143 00:16:26,330 --> 00:16:35,000 the boomerang out to an expanded conception of the national interest, humanitarian war potentially back again. 144 00:16:35,540 --> 00:16:40,400 And there might be all kinds of reasons for the boomerang back. 145 00:16:41,870 --> 00:16:50,689 Most flat, most flat footed, if you will, would be just sheer budgets of industrialised countries and their militaries. 146 00:16:50,690 --> 00:16:56,569 But also I think perhaps as a result of the Afghanistan experience and you see it even now in 147 00:16:56,570 --> 00:17:00,620 the rhetoric of what we're trying to achieve in Afghanistan and how that has been scaled back, 148 00:17:01,910 --> 00:17:10,400 a return to a much more limited and much less ambitious agenda, whether that's a bad or a good thing we might discuss, 149 00:17:10,670 --> 00:17:13,610 and whether you agree with me that there's been a complete boomerang. 150 00:17:13,790 --> 00:17:20,420 As I say, I'm still not completely convinced myself, but that's what I wanted to throw out for discussion today. 151 00:17:20,460 --> 00:17:30,160 So I'll stop there and turn immediately to David and ask if you would like to comment on them. 152 00:17:30,410 --> 00:17:37,400 Thank you very much. Well, just to reiterate, Jennifer's warm welcome to all of those of you who have not been great events before. 153 00:17:37,430 --> 00:17:43,669 It's great to see you here. We will see a lot more of you. And also just a word of thanks to our chairman today. 154 00:17:43,670 --> 00:17:47,840 Rob, it's great to have you here, even across the floor from CDW together. 155 00:17:48,290 --> 00:17:51,260 It's really wonderful to be able to do this this joint event. So thank you. 156 00:17:52,550 --> 00:18:00,890 So I wanted to reflect a little bit about or on the changes that I've seen occurring within 157 00:18:00,890 --> 00:18:05,959 the the ethical norms in space and in our approach to warfare in the last ten years, 158 00:18:05,960 --> 00:18:06,860 since 911. 159 00:18:07,310 --> 00:18:15,330 And I think what's really striking is for anybody who has been involved in with military organisations or in the military space or even as a, 160 00:18:15,380 --> 00:18:22,970 you know, as a casual observer, it's just been striking the transformation that has occurred in in in a very, 161 00:18:22,970 --> 00:18:28,890 very significant number of areas within the way that we think about the ethics, the morality of using force. 162 00:18:28,910 --> 00:18:31,309 So what I want to do is reflect on a few of the changes, 163 00:18:31,310 --> 00:18:37,870 as I've seen them reflect a little bit about what the causes of those are and what relation that has to 911 itself. 164 00:18:37,880 --> 00:18:40,910 And then just a little bit about where we may be going from here. 165 00:18:42,020 --> 00:18:48,740 So I mean, as a philosopher, which is my discipline within the philosophical tradition, 166 00:18:50,330 --> 00:18:55,910 questions about the ethics of war are traditionally divided into two components the so called and bound, 167 00:18:56,330 --> 00:19:01,219 which are considerations around the justification for going to war and the so-called goals in 168 00:19:01,220 --> 00:19:07,700 below which are the rules or regulations for how one ought morally defined when one is in war. 169 00:19:07,760 --> 00:19:10,820 And I think what's very interesting is that over the last ten years, 170 00:19:11,330 --> 00:19:16,960 there have been almost contradictory tendencies occurring within the anvil and the envelope. 171 00:19:17,000 --> 00:19:17,900 What do I mean by that? 172 00:19:18,470 --> 00:19:30,950 Well, I think what we've seen on the anvil inside has been a number of expansions or attempts to expand the right to go to war, 173 00:19:31,040 --> 00:19:38,329 to have recourse to war. Whereas what we've seen on the other side has been a very substantial contraction or 174 00:19:38,330 --> 00:19:43,729 tightening in terms of the regulations of what is permitted to be permissible conduct, 175 00:19:43,730 --> 00:19:48,040 at least for Western forces. Engaged in the kinds of wars that we've seen since 911. 176 00:19:48,820 --> 00:19:52,750 So let's start with the ambulance side first. So one of the most striking, I think, 177 00:19:52,750 --> 00:20:02,560 of these expansive revisions of of justifications for going to war has been the development and and 178 00:20:04,030 --> 00:20:10,780 acceptance and corporatisation of the norm of responsibility to protect the of a huge amount of work on. 179 00:20:11,860 --> 00:20:20,649 So this was obviously a an idea that was attempting to come to grips with a problem that had been inherited from the nineties and earlier. 180 00:20:20,650 --> 00:20:25,180 The question of when it was permissible for a state to intervene militarily in the affairs of 181 00:20:25,180 --> 00:20:30,430 another state when they were engaged in atrocity or genocide against members of their own community. 182 00:20:30,880 --> 00:20:36,940 And a body called the International Commission on Intervention State Sovereignty, funded by the Canadian government, 183 00:20:37,300 --> 00:20:44,170 produced a report almost at the same time as Monaghan proposing a concrete ization of of this norm. 184 00:20:44,680 --> 00:20:50,140 This was was then substantially ratified in 2005 for the UN General Assembly. 185 00:20:51,040 --> 00:20:57,070 The document and the norm itself had a number of elements of which military intervention was only one component. 186 00:20:57,970 --> 00:21:04,000 And for a substantial part of the 2000, as many people thought that was, that would be that the less important, 187 00:21:04,000 --> 00:21:09,430 the less significant element of it that Libya, I think, is really once again place that front and centre. 188 00:21:09,430 --> 00:21:15,729 And to my reading the debates now are very much around around when to intervene in these desperate situations, 189 00:21:15,730 --> 00:21:20,350 how to intervene that that that kind of fundamental assertion that there can be a 190 00:21:20,350 --> 00:21:24,940 moral and also legal rationale to intervene has has quite substantially been settled. 191 00:21:25,570 --> 00:21:31,630 There was one very clear example of how the antebellum rights of them had been developed during the 2000. 192 00:21:32,500 --> 00:21:39,700 Two of the areas in which this had to a lesser extent been a development of the had been, 193 00:21:39,970 --> 00:21:44,680 I think, involved a an idea that there was a right to engage in preventive action. 194 00:21:45,910 --> 00:21:53,680 So one year after the 911 attacks, the Bush administration published their national security strategy, 195 00:21:54,100 --> 00:22:01,000 in which the administration asserted that there was a right for states to engage in preventive action. 196 00:22:01,300 --> 00:22:07,030 They didn't refer to it as prevention, but that's effectively what it was. Prevention of action against an emerging threat. 197 00:22:07,260 --> 00:22:12,340 And before that threat had actually attacked and perhaps before that threat had even become a real and concrete threat. 198 00:22:13,000 --> 00:22:17,920 Now, this I think this kind of proposed or emerging norm never really gained the traction. 199 00:22:17,920 --> 00:22:22,510 That responsibility to protect it was remained very, very marginal, very, very disputed. 200 00:22:22,510 --> 00:22:31,450 And I think that the the the, you know, within the legal school, as within the moral and within moral thinking, 201 00:22:31,460 --> 00:22:36,820 that had a very, very substantial pushback against that attempt to develop this this new and more expansive norm. 202 00:22:38,050 --> 00:22:47,320 A third developing expansive norm that I think we've seen within the ad bellum context, which is very much to Afghanistan, 203 00:22:47,650 --> 00:23:01,930 was a a an expression of a justification for using force against a state that had not itself used force against you attacked, 204 00:23:02,230 --> 00:23:06,340 but had facilitated others in attacking you. 205 00:23:06,340 --> 00:23:08,590 And this was exactly the case of Afghanistan. 206 00:23:08,860 --> 00:23:15,009 So the rationale for US intervention in Afghanistan was not that the Afghan government had itself attacked the United States, 207 00:23:15,010 --> 00:23:24,880 but that it facilitated Al Qaida's attack and had failed to hand over Osama bin Laden, another of its own, following that attack. 208 00:23:25,330 --> 00:23:28,500 Now, again, I think that that that is that was a new norm. 209 00:23:28,510 --> 00:23:36,040 I think it was not explicit before. And I think that that probably lies somewhere between the responsibility to protect and prevention. 210 00:23:36,040 --> 00:23:41,950 Dawn I think it's gained some currency, but I think that there's still there's still dispute and controversy over that. 211 00:23:42,460 --> 00:23:49,720 So that's on the admin side. Now, I think what's really striking is when you contrast that with how Western states have actually fought their 212 00:23:49,720 --> 00:23:56,020 interventions in theatre such as Afghanistan and Iraq and their rather than an expansion of war rights, 213 00:23:56,020 --> 00:23:59,690 you've seen a very striking and substantial contraction. 214 00:23:59,740 --> 00:24:04,299 I think you can you can see this in a whole range of different contexts. 215 00:24:04,300 --> 00:24:11,560 But one very striking context is if you look at the way that Western armies have configured their rules of engagement. 216 00:24:12,040 --> 00:24:19,479 So at least within the last within the last 2 to 3 years, rules of engagement have been very, 217 00:24:19,480 --> 00:24:28,420 very restrictive to the point that strikes against predetermined targets essentially are done 218 00:24:28,420 --> 00:24:32,710 now with the presumption that there will be no civilian civilian casualties whatsoever, 219 00:24:33,340 --> 00:24:36,760 at least that that that has to be the reasonable presumption going into these attacks. 220 00:24:38,560 --> 00:24:45,120 If the situation is different, if it's a situation of, for example, close air support being called in. 221 00:24:45,830 --> 00:24:49,940 In the context of of an active engagement where one's own troops are on the line. 222 00:24:50,270 --> 00:25:00,829 But even there with the the approach that was that was really developed by David Petraeus 223 00:25:00,830 --> 00:25:05,330 and substantially continued through the through the tenure of Stanley McChrystal, 224 00:25:05,570 --> 00:25:12,410 it was a much more restrictive approach to to issues like like civilian collateral damage. 225 00:25:13,190 --> 00:25:19,759 So this is the kind of a very striking and very striking divergence, as it were, to really, you know, very, 226 00:25:19,760 --> 00:25:24,350 very new developments in the way we were approaching war since 911, seeming to pull in different in different ways. 227 00:25:24,770 --> 00:25:26,060 So what could be lagging behind that? 228 00:25:26,090 --> 00:25:35,659 Well, very difficult things to to assess, because these developments obviously have had a whole range of different strategic, 229 00:25:35,660 --> 00:25:38,990 political, legal and moral determinations, 230 00:25:39,410 --> 00:25:49,640 but to two philosophies by one very, very clear element in this transformation has been what you might call the individualisation of warfare. 231 00:25:50,450 --> 00:26:00,799 What I mean by that is the fact that individuals and small groups of individuals, but not states, are increasingly playing a role within warfare, 232 00:26:00,800 --> 00:26:06,770 both as protagonists, but also and very significantly as bearers of rights within theatres of war. 233 00:26:08,090 --> 00:26:16,819 And that idea of individual human rights and persons within the theatre of conflict as bearers of rights, 234 00:26:16,820 --> 00:26:21,530 I think has had a really profound transformation in the way that theorists of the 235 00:26:21,530 --> 00:26:26,090 ethics of war have viewed a whole range of questions within the ethics of war. 236 00:26:26,510 --> 00:26:34,510 And I think that that that kind of normative push, as it were, has had a very significant effect on the way that soldiers are conducting operations, 237 00:26:34,530 --> 00:26:38,840 I think has had an effect on on the shape of the emerging shape of the law as well. 238 00:26:39,380 --> 00:26:44,720 So how is this kind of individualisation, this focus on individuals as bearers of rights and as actors? 239 00:26:44,720 --> 00:26:48,230 How is it kind of being responsible for this, for these developments? 240 00:26:48,710 --> 00:26:54,050 Well, I think the connection with the development of responsibility to protect is very, very clear. 241 00:26:54,260 --> 00:27:01,580 So it's it's the conception of individuals as bearers of rights that has really enabled the argument that was originally made by Iraqis. 242 00:27:01,880 --> 00:27:06,740 The argument that says that state sovereignty is conditional on respect for human rights, 243 00:27:07,130 --> 00:27:10,610 where that respect and protection for the rights of individuals is not present. 244 00:27:10,880 --> 00:27:14,990 The sovereignty of states can become forfeited in particular ways. 245 00:27:15,080 --> 00:27:22,879 There's a very, very clear implication there on prevention and the right to use force against 246 00:27:22,880 --> 00:27:26,720 those who haven't attacked but have harmed harboured those who do attack. 247 00:27:26,720 --> 00:27:31,850 That connection, I think, is less clear. But I think what what's really striking in that debate is that the debate was 248 00:27:31,850 --> 00:27:37,190 posed very much in terms of rights of self-defence and the right of self-defence, 249 00:27:37,190 --> 00:27:41,179 although that can be viewed as as pertaining to, as it were, 250 00:27:41,180 --> 00:27:50,240 states state's right of self-defence against other states has also increasingly been cast in terms of rights of individual self-defence. 251 00:27:50,750 --> 00:27:57,979 So if you think on the other side of that argument, if you think of those like myself who were arguing against the Bush administration's 252 00:27:57,980 --> 00:28:01,430 expansion of the right of self-defence to include preventive action, 253 00:28:01,910 --> 00:28:05,510 one of the primary arguments that was made there was to say, look, 254 00:28:06,050 --> 00:28:14,240 individuals become liable to defensive force because they have engaged in a wrongful act, a wrongful attack against others. 255 00:28:15,410 --> 00:28:18,700 In cases of preventive military action. This is really problematic, right? 256 00:28:18,710 --> 00:28:23,540 Because you're using military force against the state and also against soldiers 257 00:28:24,050 --> 00:28:28,730 who have not yet engaged in a wrongful armed attack against other parties. 258 00:28:28,940 --> 00:28:34,640 So how can we understand those armed personnel, those soldiers that you would kill in a preventive war? 259 00:28:34,910 --> 00:28:39,530 How can we understand those as justified killings in the sense that the persons who are 260 00:28:39,530 --> 00:28:45,860 using military force against have done something to forfeit their their their rights. 261 00:28:46,220 --> 00:28:52,490 So I think we see the language of rights, the status of the individual appearing very, very strongly within that debate as well. 262 00:28:53,510 --> 00:28:58,400 Now, when you look at the had a more kind of tactical questions, the Petraeus doctrine, the McChrystal doctrine, 263 00:28:58,790 --> 00:29:02,540 what a lot of people would say is, well, you know, it wasn't so much ethical motivations. 264 00:29:02,540 --> 00:29:07,970 It was it was a realisation that the strategy had to change because the previous strategy was not working. 265 00:29:08,360 --> 00:29:12,290 Now, I think that's true up to a point, but you have to ask the question, well, you know, 266 00:29:12,290 --> 00:29:19,550 why was this previous strategy not working or why was the realisation made that the more civilian deaths you had, 267 00:29:19,730 --> 00:29:24,049 the stronger you made the insurgency? Well, part of the explanation to that, I think, obviously, 268 00:29:24,050 --> 00:29:32,120 is that there has been a shift in the acceptability around the moral acceptability of those kinds of harms to civilians. 269 00:29:32,120 --> 00:29:36,290 And I think that that shift has also very substantially had at least at least within 270 00:29:36,290 --> 00:29:40,890 the West have to do with the rise of the idea of individuals as bearers of rights. 271 00:29:40,910 --> 00:29:44,600 I think we see it very, very strongly here as well. So we're. 272 00:29:44,690 --> 00:29:52,069 Where are we kind of going from here? And I think maybe I'll just end by very briefly discussing a development that I think kind of perfectly 273 00:29:52,070 --> 00:29:58,670 encapsulates these dynamics and the unstable point at which we've arrived in this development process. 274 00:29:59,150 --> 00:30:11,120 And that is the use of drones and unarmed weapons to target particular individuals, as we had with the killing of other one. 275 00:30:11,670 --> 00:30:15,590 Either way, what how lucky. Our lucky if you are lucky. 276 00:30:16,670 --> 00:30:22,549 Now, what's really striking about that is, first of all, it's it's a perfect example of the individualisation of the use of force. 277 00:30:22,550 --> 00:30:22,760 Right. 278 00:30:22,760 --> 00:30:31,550 Rather than targeting the person qua combatant, we're targeting it as the person he is for the particular act that he as an individual has taken. 279 00:30:33,320 --> 00:30:38,959 And we do that in a very, very individualised way, using a lot of intelligence and using highly, 280 00:30:38,960 --> 00:30:47,360 highly accurate targeting technologies, which we which we hope will not will not kill civilians nearby, which often does. 281 00:30:48,480 --> 00:30:58,350 Now that killing produced a great deal of anxiety within the US and the and the, the discourse here was not so much about human rights, 282 00:30:58,350 --> 00:31:01,589 but about constitutional rights, of course, because he was an American citizen. 283 00:31:01,590 --> 00:31:04,560 But you can see that this is this is on the spectrum of the same idea. 284 00:31:05,340 --> 00:31:10,140 Now, you know, as soon as you pose this question from from the kind of question of human rights, 285 00:31:10,830 --> 00:31:17,040 it's a bit of a paradox here, because on the one hand, you know, if we believe that people have rights, 286 00:31:17,040 --> 00:31:22,290 that they that they only lose by engaging in certain kinds of wrongful action, 287 00:31:22,650 --> 00:31:27,900 then killings like the killing of our own, well, I think ought to be seen as all to the good, right? 288 00:31:27,900 --> 00:31:32,260 You're killing a person because of the things that he has done. 289 00:31:32,290 --> 00:31:35,459 We can argue about whether in that case the killing was was justified. 290 00:31:35,460 --> 00:31:40,320 But there's a case there that that this person was being killed because of the action that that he has taken. 291 00:31:41,190 --> 00:31:45,090 Now, the worry, of course, as you know, is that, well, you know what? 292 00:31:46,050 --> 00:31:46,290 You know, 293 00:31:46,290 --> 00:31:54,299 what does it say about a state who's willing to engage in essentially an extrajudicial killing on the basis of intelligence that probably would 294 00:31:54,300 --> 00:32:02,310 never stand up in court and without all of the due process rights that we've come to expect of a civilised and morally justified government. 295 00:32:02,640 --> 00:32:14,610 I think it's a very real concern. But if you then transform that set of concerns into the context of a of a normal military campaign where you are 296 00:32:14,610 --> 00:32:24,749 killing persons simply because they're wearing a uniform without any regard to their individual responsibility, 297 00:32:24,750 --> 00:32:33,190 culpability, liability for the action in question, then it's really a different order of magnitude of concern. 298 00:32:33,210 --> 00:32:41,100 So it's really I mean, I think it's a very interesting example because it really it really it really highlights the the kind of complete disconnect 299 00:32:41,520 --> 00:32:49,139 in terms of the way that we think about justifications for using lethal violence within a context that looks quasi judicial. 300 00:32:49,140 --> 00:32:55,140 Assume it as we are naming and targeting an individual person and the kind of, you know, 301 00:32:55,350 --> 00:33:04,140 at one level quite indiscriminate random killing of persons in a way that is entirely disconnected from their agency, 302 00:33:04,410 --> 00:33:09,479 individual responsibility or individual liability. And I think that that that kind of disconnect and raises really, 303 00:33:09,480 --> 00:33:17,040 really interesting and troubling questions as we as we work through the way that these developments might pan out in the next ten years, 304 00:33:17,910 --> 00:33:26,960 whereas at the end of the judicial initiative, because immediately to the present day to pick up on the legal aspects of they don't succeed. 305 00:33:27,210 --> 00:33:32,550 Thank you very much. What I want in addition to thanking Rob for chairing the event, 306 00:33:32,550 --> 00:33:41,580 I just wanted to say that Rob himself is an expert on these issues from yet another disciplinary perspective, and he's written on what this is. 307 00:33:41,580 --> 00:33:49,530 Hot off the presses. Yeah, it's Rob's new book, The Afghan Way of War Culture and Pragmatism A Critical History. 308 00:33:49,530 --> 00:33:53,490 So that provides yet another perspective looking at these issues. 309 00:33:53,880 --> 00:34:00,610 I want to pick up on actually one of those issues that David touched upon when he was talking about the youth and Berlin. 310 00:34:00,630 --> 00:34:07,470 And one of the things that David talked about was the argument that a state can use force against another state 311 00:34:07,860 --> 00:34:15,810 that hasn't attacked the state itself or has harboured or supported groups that have carried out the attack. 312 00:34:16,680 --> 00:34:26,640 So what I really want to focus on are the changes in international law since 911 and arising as a direct result of the response to 911, 313 00:34:27,090 --> 00:34:31,590 the changes relating to the use of force by states against non-state groups. 314 00:34:32,070 --> 00:34:37,590 Right. This is a direct result of of 911 because of course, this was the response to 911. 315 00:34:38,070 --> 00:34:47,040 And as I will try to describe it in the time that I have the justifications that were employed by the US and others in 316 00:34:47,040 --> 00:34:55,440 going into Afghanistan are justifications that have since been employed by many states and in a way which goes completely, 317 00:34:55,770 --> 00:35:00,030 which is completely at odds with the position before 911. 318 00:35:01,320 --> 00:35:11,280 So the question essentially is this to what extent can a state use force in self-defence against a non-state group 319 00:35:11,640 --> 00:35:20,610 that is based on the territory of another state when that of the state is not directly responsible for the non-state? 320 00:35:21,210 --> 00:35:28,260 So that's the question. When can a state use force on the territory of another state against a non-state group when 321 00:35:28,260 --> 00:35:35,760 the state where the force is being used is not directly responsible for that non-state group? 322 00:35:36,240 --> 00:35:47,760 Now, let me take you back to the position before 911, both in terms of the legal position and I think the generally accepted practice. 323 00:35:48,270 --> 00:35:50,070 In international politics as well. 324 00:35:50,700 --> 00:35:57,810 Now, in 1986, the International Court of Justice delivered judgement in a case which is now called the Nicaragua case. 325 00:35:58,350 --> 00:36:02,550 It was a case between Nicaragua and the United States of America. 326 00:36:03,720 --> 00:36:05,730 Nicaragua brought the case against the US, 327 00:36:05,730 --> 00:36:15,150 alleging that the US had unlawfully used force against Nicaragua by supporting the Contra rebels who were operating in Nicaragua. 328 00:36:16,440 --> 00:36:19,740 The US argued that it was acting in self-defence. 329 00:36:19,770 --> 00:36:24,540 To be more precise, it argued that it was acting in collective self-defence. 330 00:36:25,140 --> 00:36:34,770 So the US said we are using force against Nicaragua in support of the surrounding states that are bordering in Nicaragua, 331 00:36:34,770 --> 00:36:37,590 namely El Salvador, Honduras and Costa Rica. 332 00:36:38,190 --> 00:36:46,140 Because the US said Nicaragua was supporting rebel groups in those countries, particularly in El Salvador. 333 00:36:46,890 --> 00:36:48,900 So the basic argument was this. 334 00:36:49,530 --> 00:36:59,609 Nicaragua was providing arms and logistical support and bases for rebels who were fighting against the government of El Salvador, 335 00:36:59,610 --> 00:37:07,140 but who were based in Nicaragua. The International Court of Justice held that that may be true, 336 00:37:07,320 --> 00:37:14,220 that Nicaragua was providing these rebels with financial assistance, logistical support, possibly bases, 337 00:37:14,790 --> 00:37:20,850 but that this did not amount to an armed attack within the meaning of Article 51 of the UN Charter, 338 00:37:21,210 --> 00:37:28,290 which entitle the United States and these other countries to use force against Nicaragua. 339 00:37:28,800 --> 00:37:36,340 This is 1986. So eventually the International Court of Justice held providing financial assistance. 340 00:37:36,340 --> 00:37:40,620 Logistical support does not rise to the level of an armed attack. 341 00:37:40,630 --> 00:37:45,010 It may be unlawful, but it does not justify a use of force in self-defence. 342 00:37:46,860 --> 00:37:54,390 One question, of course, we have to ask ourselves is was the ICJ an outlier in saying this in 1986? 343 00:37:55,350 --> 00:38:03,120 I suggest that the Court was not just the year before the UN Security Council had adopted a resolution 344 00:38:03,120 --> 00:38:10,920 which had unanimously condemned Israel for its attack on the PLO headquarters in Tunis in Tunisia. 345 00:38:11,940 --> 00:38:18,060 What was the Israeli argument, an argument that Israel had used, of course, consistently in the seventies and 1980s, 346 00:38:18,630 --> 00:38:23,459 that there is a non-state group or terrorist group which is based in Tunisia, 347 00:38:23,460 --> 00:38:29,610 i.e. the PLO, which is plotting attacks and has carried out attacks against Israel and were entitled to 348 00:38:29,610 --> 00:38:34,920 use force on the territory of Tunisia or any other state against this non-state group. 349 00:38:36,000 --> 00:38:45,280 The Security Council had on a number of occasions condemned South Africa in the 1970s for a similar type or pattern of attack. 350 00:38:45,300 --> 00:38:51,060 If you recall, in the 1970s, South Africa conducted raids against the so-called front frontline states, 351 00:38:51,480 --> 00:38:56,340 i.e. Mozambique, Angola, etc., etc., basically using the same argument. 352 00:38:56,460 --> 00:39:00,810 There are these terrorist groups that are based in these countries conducting attacks 353 00:39:00,810 --> 00:39:06,300 against us and we are entitled to use force against these countries as well, 354 00:39:06,630 --> 00:39:09,270 against these non-state based in those countries. 355 00:39:10,050 --> 00:39:18,090 These countries complained repeatedly and even in the Security Council they found support for this argument. 356 00:39:19,050 --> 00:39:25,140 So despite the protests of the United States in 1986 and the judgement in Nicaragua, 357 00:39:25,140 --> 00:39:30,360 it was condemned by a number of American well commentators particularly. 358 00:39:30,870 --> 00:39:37,199 But I suggest that the position that the ICJ took in 1986 was not outside the frame 359 00:39:37,200 --> 00:39:41,669 of reference that had been applied in international law and by by international 360 00:39:41,670 --> 00:39:47,010 organisations at the time that first and essentially the position was for a state to 361 00:39:47,010 --> 00:39:52,360 use force on the territory of a non-state of another state against a moderate group. 362 00:39:52,400 --> 00:39:57,840 You had to show a strong link between the state on whose territory the force 363 00:39:57,840 --> 00:40:01,800 was being used and the non-state group against which you were using force. 364 00:40:02,610 --> 00:40:07,380 And the ICJ said this link had essentially to be one of sending. 365 00:40:07,740 --> 00:40:13,620 You had to show that the state that you were attacking has set or has effective control 366 00:40:13,740 --> 00:40:18,000 over that non-state group and this language from a General Assembly resolution. 367 00:40:18,780 --> 00:40:26,909 Now, why did the ICJ say this? Remember, this is the Cold War where we had or the context is the Cold War, 368 00:40:26,910 --> 00:40:33,600 lots of proxy wars, practically every civil war that took place at that time, 369 00:40:33,840 --> 00:40:42,059 maybe still now there was there was support for the rebel group or the non-state group by an 370 00:40:42,060 --> 00:40:47,790 outside power in terms of providing weapons or finance or some sort of logistical assistance. 371 00:40:48,210 --> 00:40:54,120 If you think about it, unless the rebels make the weapons themselves, they must be getting it from somewhere else. 372 00:40:54,570 --> 00:41:03,780 And the logic was, if you allow attacks against any state that provides weapons, you automatically internationalise any civil war. 373 00:41:03,990 --> 00:41:11,700 You provide justification on which any civil war can be internationalised, and it also provides for escalation. 374 00:41:12,900 --> 00:41:15,960 So this is our world pre 911. Okay. 375 00:41:15,970 --> 00:41:20,370 There is controversy about this. Israel is very unhappy about this. 376 00:41:20,400 --> 00:41:22,350 South Africa is very unhappy about this. 377 00:41:22,770 --> 00:41:32,210 But on this issue, I would suggest that there were parties, even the U.S. and that's why I stressed the unanimity in the resolution in 1985. 378 00:41:32,220 --> 00:41:43,350 Even the US occasionally, but repeatedly took the view that this international law did not allow for this type of use of force. 379 00:41:43,800 --> 00:41:48,870 That's where we were on the day before September, September ten. 380 00:41:49,090 --> 00:41:57,640 So I was trying to convert the deeds. I was going to say on 811, and then I thought, no matter what. 381 00:41:57,690 --> 00:42:01,230 910 was that right? 910 You know, you know what I mean? 382 00:42:01,240 --> 00:42:05,460 The day before September 11, anyway. 910 That's that's our world. 383 00:42:05,520 --> 00:42:09,060 910 So what happens after September 11? 384 00:42:10,080 --> 00:42:21,240 As we know, a few weeks later, Air Force was used, as has been described by Jennifer and by David Rohde talked about in his book Against Afghanistan. 385 00:42:21,510 --> 00:42:29,670 Right. And here the US is now making an argument which is at odds with this position that was taken before 911. 386 00:42:30,120 --> 00:42:35,189 The US argues that I'm sure you all remember George, but actually I'm sure you don't all remember. 387 00:42:35,190 --> 00:42:39,280 This is the. Yeah. Excuse me. Excuse me. This is a detour. 388 00:42:39,300 --> 00:42:46,890 This is ten years on set on the assumption that some of you are undergraduates or graduate students, you're probably 12 or 13. 389 00:42:47,310 --> 00:42:50,550 And this this is one of the depressing things about being an academic. 390 00:42:50,580 --> 00:42:57,930 The entry and speech stays constant, but every year passes by and we are one year older anyway. 391 00:42:57,930 --> 00:43:01,280 And I'm sure you all know you don't look. Thank you. Thank you, Robert. 392 00:43:01,560 --> 00:43:08,100 You all remember George Bush saying specifically, you're either with us or against us. 393 00:43:08,400 --> 00:43:12,180 We're using force against those who harbour as well. 394 00:43:13,380 --> 00:43:21,090 And this is the big challenge. The assertion that it is legitimate to use force against those who harbour. 395 00:43:22,650 --> 00:43:26,970 And this position that was taken by the US is a position that was endorsed 396 00:43:27,690 --> 00:43:33,269 quite widely by a number of states who Jennifer referred to Resolution 1368, 397 00:43:33,270 --> 00:43:41,670 which was passed on. Nine, 12 and 1368 accepts that the US has the right to self-defence. 398 00:43:41,750 --> 00:43:48,740 In other words, they accept the US argument and the UN Security Council repeats this in resolution 1363 1373. 399 00:43:49,940 --> 00:43:58,250 Jennifer mentions again, NATO's for the first time invoked its collective self-defence provisions in Article five of the North Atlantic Treaty. 400 00:43:58,520 --> 00:44:02,720 So this is all native of countries accepting that the US has a right of self-defence. 401 00:44:03,290 --> 00:44:06,559 But of course the US only has a right to self-defence against Afghanistan. 402 00:44:06,560 --> 00:44:17,540 If you accept that the US is entitled to attack countries who do not just send but who also harbour the OAS. 403 00:44:18,500 --> 00:44:22,280 Collective Self-defence Provisions Organisation of American States was also involved. 404 00:44:23,390 --> 00:44:30,200 The Arms Treaty, Australia and New Zealand. US, with a similar collective self-defence provision was also invoked, 405 00:44:30,680 --> 00:44:36,940 so there was quite widespread support for this position that was taken by the US. 406 00:44:38,880 --> 00:44:49,980 So this is the direct legacy of 911. But what is more significant about this is that this argument has not only been invoked by other states, 407 00:44:49,980 --> 00:44:55,049 but it has now been widely used in a number of conflicts across the world. 408 00:44:55,050 --> 00:45:00,240 So this is now taking it away from the the Afghanistan context. 409 00:45:00,600 --> 00:45:11,010 But we see Turkey going into northern Iraq on several occasions since then, using basically the same argument that says there are terrorists. 410 00:45:11,040 --> 00:45:17,940 Of course, everybody's a terrorist. Now, on the other side in Afghanistan, this are in northern Iraq, and we're entitled to use force. 411 00:45:18,390 --> 00:45:27,540 We see Russia using precisely the same argument going into Georgia to take action against Chechen rebels. 412 00:45:27,930 --> 00:45:31,350 We see Rwanda, Uganda. 413 00:45:31,780 --> 00:45:35,780 We went into the DRC again in this period since 911. 414 00:45:35,800 --> 00:45:42,480 This led to another ICJ case that I will come to and taking action against non-state groups. 415 00:45:42,480 --> 00:45:49,080 They went into the Democratic Republic of Congo not to fight against the armed forces of the Democratic Republic of Congo, 416 00:45:49,380 --> 00:45:53,850 but to fight against non-state groups that are based in the DRC. 417 00:45:54,450 --> 00:46:02,450 We've seen Colombia use force in Venezuela against rebels. 418 00:46:02,460 --> 00:46:09,560 So how many continental are going through now have gone through Europe, Africa, South America. 419 00:46:10,410 --> 00:46:13,980 We've seen recent. 420 00:46:15,490 --> 00:46:18,490 Not like what people are in 2010. 421 00:46:18,640 --> 00:46:26,800 That is last year, 2010, 2010. Saudi Arabia using force in Yemen without the consent of of the Yemeni government. 422 00:46:27,220 --> 00:46:39,370 This is now widespread. Countries using force against non-state groups based on the territory of other states with this same justification. 423 00:46:39,550 --> 00:46:46,660 And of course, the US has taken the same argument and used force in a number of other of the countries Pakistan, Yemen, Somalia. 424 00:46:47,290 --> 00:46:53,920 You know that very many countries and this has become, I would suggest, one of the defining features of armed conflict today. 425 00:46:54,250 --> 00:47:02,110 Many armed conflicts that are of a transnational character do not involve two states fighting each other. 426 00:47:02,560 --> 00:47:08,530 Many of them involve one state using military force across the boundary. 427 00:47:08,890 --> 00:47:16,910 But again, a non-state group. And this is all premised on the assertion that it is justifiable to do this. 428 00:47:16,930 --> 00:47:23,890 Now, what's the position in international law? I suggested that in the Nicaragua case the ICJ suggested that this was not lawful. 429 00:47:25,750 --> 00:47:32,560 But international law is based on well, in large part on customary international law and state practice. 430 00:47:32,770 --> 00:47:41,590 And The Hague practice is now so widespread that I think it is difficult to argue that the law has not changed since 911. 431 00:47:42,010 --> 00:47:50,740 I think this is one of those areas when we can see a direct impact on law making of the actions that happened after 911. 432 00:47:51,430 --> 00:47:55,120 Having said that, the International Court of Justice in a couple of cases, 433 00:47:56,170 --> 00:48:04,540 in particular the advisory opinion that the ICJ gave on the Israeli wall in the occupied Palestinian territory. 434 00:48:04,750 --> 00:48:11,860 The ICJ has said in that case and another one it held on to its view, its 1986 view. 435 00:48:12,190 --> 00:48:19,720 The majority of the court, some of the judges in their separate and dissenting opinions, criticised the majority for holding on to this view. 436 00:48:20,020 --> 00:48:24,849 But they've more or less held on to their view that there needs to be standing by one 437 00:48:24,850 --> 00:48:30,280 state of this be before that state becomes liable to a use of force in self-defence. 438 00:48:30,310 --> 00:48:33,890 I think the Court, as a matter of law, is wrong to do that. 439 00:48:33,910 --> 00:48:39,430 I think the practice has changed and it has decisively changed, but the court has held on to that. 440 00:48:40,120 --> 00:48:42,879 Let me just turn to another issue, 441 00:48:42,880 --> 00:48:51,620 and this is the issue of how some of these changes have had an impact on abuse even better from a legal perspective. 442 00:48:51,640 --> 00:48:57,970 In other words, the rules that govern the conduct of operations during an armed conflict. 443 00:48:59,290 --> 00:49:04,960 So one of the key questions that has arisen as a result of this phenomenon that I've just been talking about, 444 00:49:05,380 --> 00:49:12,670 one of the key questions is how do we characterise these transnational conflicts against non-state groups? 445 00:49:13,480 --> 00:49:19,440 Because international humanitarian law, the law of armed conflict divides armed conflicts into two. 446 00:49:20,170 --> 00:49:24,220 We talk about international armed conflicts and we talk about non international law. 447 00:49:25,510 --> 00:49:33,460 And the significance of this division is that the rules that apply in international armed conflicts, i.e. state to state conflict, 448 00:49:33,970 --> 00:49:44,380 are more numerous than the rules that apply in non-international armed conflicts, or what one might have called internal wars or civil wars. 449 00:49:45,690 --> 00:49:53,040 But I'm sure you can see that these types of conflicts that I'm talking about now appear to straddle these divisions. 450 00:49:53,700 --> 00:50:01,950 So on the one hand, these conflicts are transnational. They do not involve a state using force on its own territory, as you would see in a civil war. 451 00:50:02,220 --> 00:50:08,280 And one of the reasons why the rules in internal conflicts are more limited is because states have been 452 00:50:08,280 --> 00:50:15,430 more reluctant to accept the regulation of international law when dealing with these internal conflicts. 453 00:50:15,450 --> 00:50:22,620 And I'll just touch very quickly on one of those changes. So on the one hand, the use of force is transboundary, transnational. 454 00:50:23,190 --> 00:50:28,889 But on the other hand, the use of force is, as I know people would say, asymmetric. 455 00:50:28,890 --> 00:50:37,160 It's not a state, one state. So it has features both of international conflicts and features of non-international armed conflicts. 456 00:50:37,170 --> 00:50:45,900 And this means that actually very significant questions in relation to, for example, rules relating to detention. 457 00:50:46,950 --> 00:50:55,200 And this is one of the significant issues that has dogged the US policy in relation to Guantanamo, 458 00:50:55,200 --> 00:51:02,609 in relation to detention in Afghanistan and elsewhere. International law, the international law, 459 00:51:02,610 --> 00:51:13,680 rules of of armed conflict by itself has very detailed rules relating to detention in a non extreme, an international armed conflict. 460 00:51:14,070 --> 00:51:22,020 Either you are considering whether a person is a prisoner of war or there are very detailed rules to do with detention of civilians. 461 00:51:23,640 --> 00:51:28,200 With non-international armed conflicts. We have nothing, no rules at all. 462 00:51:29,660 --> 00:51:41,580 In international law. And this is the problem that the US faced in Guantanamo, in the sense that on the one hand the US was arguing that, 463 00:51:41,580 --> 00:51:49,680 well, we're fighting against this non-state and therefore this is not an international armed conflict. 464 00:51:50,760 --> 00:51:55,319 But on the other hand, they were saying, look, we are using force abroad. 465 00:51:55,320 --> 00:51:58,680 And they're saying that this was also not an internal armed conflict. 466 00:51:58,980 --> 00:52:03,150 So effectively the US was suggesting that we have a legal black hole here. 467 00:52:03,690 --> 00:52:06,990 This is neither international nor is it non-international. 468 00:52:07,410 --> 00:52:11,490 And effectively they were saying no law applies in that space. 469 00:52:11,520 --> 00:52:18,210 Now they've since changed their position as a result of a number of cases in the US Supreme Court. 470 00:52:18,810 --> 00:52:25,290 But the fleshing out of the rules has continued to be a problem relating to U.S. detention policy. 471 00:52:26,740 --> 00:52:34,270 It's also continued to be a problem depressing out of the rules in relation to some of the targeting decisions that David was talking about. 472 00:52:36,110 --> 00:52:42,980 One of the key questions that arises here is what is the geographical scope of this armed conflict with Al Qaida? 473 00:52:43,010 --> 00:52:46,130 Again, you'll recall the rhetoric. This is a global war on terror. 474 00:52:46,550 --> 00:52:55,100 If it's a global war on terror against al Qaeda, it means we can fight anywhere in terms of we can target anywhere as long as we deem this 475 00:52:55,100 --> 00:53:01,520 person to be associated with Al Qaida or we can detain anybody anywhere on the globe. 476 00:53:01,520 --> 00:53:05,690 And a large number of the people in Guantanamo Bay were picked up in several places. 477 00:53:05,690 --> 00:53:09,380 Gambia, Bosnia. Who knows? Oxford. 478 00:53:09,390 --> 00:53:14,990 You never know. But if it is a global war on terror, everywhere is a theatre of war. 479 00:53:14,990 --> 00:53:22,549 And those rules apply. And this is one of the challenges in trying to apply international law to this type of conflict, 480 00:53:22,550 --> 00:53:29,090 which, as I say, is prevalent now just outside the so-called war on terror context. 481 00:53:30,320 --> 00:53:36,889 A lot of things about this type of a lot of states assert this rationale and 482 00:53:36,890 --> 00:53:41,660 therefore also assert that they're engaged in conflicts with non-state groups. 483 00:53:42,980 --> 00:53:49,970 Will stop the action that is extremely good timing and a what is actually a very rich trinity among the themes of terrorism. 484 00:53:50,000 --> 00:53:57,620 I am very delighted that some as an office Neal to study studying countries that we've got now not just some changes in the culture of war, 485 00:53:57,620 --> 00:54:07,639 but something about the unchanging nature of wars, clashes with individual people, the clash of reason, passion and chance seems to be still alive. 486 00:54:07,640 --> 00:54:14,240 This dynamic wars, which we are all talking about, is to light just while you gather your thoughts for questions. 487 00:54:14,960 --> 00:54:23,330 Let me just summarise if I can, and just for a moment, the boomerangs of multinational, multinational multinationals and unilateralism, 488 00:54:23,810 --> 00:54:31,850 self defence and expanded expression warfare, conventional war, too comprehensive approach and perhaps even potentially transformation. 489 00:54:32,810 --> 00:54:41,420 David Talking about changes in the philosophical underpinning of going to war and conduct in war with questions remaining over 490 00:54:41,420 --> 00:54:52,070 things such as the status of proxy war states in the defining of combatant status and in the roles and responsibilities of states. 491 00:54:52,700 --> 00:55:03,230 And then also then a reminder of the the problems of war against those states which harbour terrorists or accused of harbouring terrorists. 492 00:55:03,620 --> 00:55:07,519 That profound change after 911. Now, of course, as you were just saying, 493 00:55:07,520 --> 00:55:18,889 there really the difficulties of dealing with those suspects for a better terms within states when you operating against them or even within one's own 494 00:55:18,890 --> 00:55:24,530 home state in dealing with detainees and a case of sort of oppressing and 495 00:55:24,530 --> 00:55:29,540 assassinating Osama bin Laden within the sovereign states of another country, 496 00:55:29,690 --> 00:55:33,220 it seems to me to speak very loudly to him what he was saying to. 497 00:55:33,830 --> 00:55:36,960 So I say very rich. Translate. I hope you've got lots of questions.