Photo: Paul Morigi

The Emerging Law of 21st Century War: Third Annual Justice Stephen Breyer Lecture on International Law

Photo: Paul Morigi

The Hague Institute and Brookings, together with the Netherlands Ministry of Foreign Affairs, hosted the Third Annual Justice Stephen Breyer Lecture on International Law in Washington D.C. on Friday, 1 April. The lecture this year was delivered by Harold Koh, Sterling Professor of International Law at Yale Law School and former legal advisor of the US Department of State. Professor Koh’s lecture was titled “The Emerging Law of 21st Century War,” and addressed a range of legal issues pertaining to key aspects of contemporary warfare, including detention, interrogation, special operations, drones, cyber warfare, and the responsibility to protect (R2P) and the crime of aggression.

In his remarks, Professor Koh rejected the notion of “legal black holes” or “law-free zones” in contemporary warfare and argued that what is required is a broad translation exercise to determine how existing international law applies to new means and methods of warfare. Professor Koh also outlined key differences in the approaches of the Bush and Obama administrations to international humanitarian law, clarifying that the latter is not pursuing a “Global War on Terror,” but believes instead that military operations outside “hot battlefields” are constrained by international law principles of state sovereignty.

On the issue of detention, Professor Koh emphasized the Obama administration’s “absolute commitment” to humane treatment in detention, and observed during the subsequent panel discussion that Guantanamo Bay detention camp should never have been opened. With regard to interrogation, Professor Koh reiterated his prior public statements that all torture is illegal. He reconciled this position with support for the use of drones in targeted killings, noting that such killings could be carried out in full compliance with the laws of armed conflict (LOAC).

Professor Koh also addressed the issue of cyber warfare, supporting the position of the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security that international law, including the UN Charter, applies to cyberspace. Cyberspace is therefore a theater of operation in which jus in bello rules, as well as the LOAC principles of distinction and proportionality apply. Furthermore, Professor Koh argued that cyber-attacks may constitute a use of force, and that States may respond in self-defense. States are also legally responsible for proxy actors.

Professor Koh also discussed Article 2(4) of the UN Charter in light of the Responsibility to Protect (R2P). He observed that rigid adherence to the letter of the law creates an institutional bias towards intolerable inaction in the face of gross abuses. He underscored that the spirit of international law must serve as a guide when grappling with the challenges of warfare in the 21st Century.

The lecture was followed by a panel discussion featuring Professor Koh and the President of Eurojust, Michele Coninsx. Dr. Abi Williams, President of The Hague Institute, moderated the discussion. The panelists addressed several issues, including differences in how the US and EU interpret and apply key provisions of international humanitarian law – and the implications for coordinated, complementary and effective action – as well as the challenges of compliance with international legal regimes in counterterrorism efforts in which multiple states are involved.

Professor Koh declared it a myth that the US favors warfare while the EU favors a law enforcement approach, emphasizing that the two paradigms must be combined for effective action. Michele Coninsx voiced strong support for the work of law enforcement authorities across Europe, reminding the audience of the challenges of countering terrorism by stating that “we [law enforcement authorities] have to be lucky at all times, they have to be lucky just once.” She also called for greater international coordination to respond to the threat of terrorism more effectively – a sentiment echoed by Professor Koh. The event concluded with a lively Q&A session with the audience during which the panelists clarified and expanded on their previous comments.

Through the Justice Stephen Breyer Lecture Series, The Hague Institute and Brookings seek to shed light on pressing questions of international law and elucidate the work of Hague-based institutions in the process.

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