Professor Andrew Clapham of the Geneva Graduate Institute is a leading expert in the interplay of war and international law. In his timely new book “War,” Clapham explores the modern relevance of the concept of war and how it shapes our understanding of rights and obligations in both national and international law, questioning whether the declaration of war can justify actions otherwise deemed illegal. In this interview, conducted by former JURIST Deputy Executive Director Akshita Tiwary, Clapham shares his expert perspectives on the evolving nature of the laws of war, the challenges of enforcing international humanitarian law, and the role of international institutions in maintaining global peace and security. He also discusses contemporary issues such as cyber warfare, the legal implications of drone strikes, and the importance of protecting human rights in conflict zones.

A full transcript follows the video below.

Akshita Tiwary for JURIST: Hello everyone. My name is Akshita Tiwary, and I am currently pursuing my LLM in International Law at the Graduate Institute Geneva. Today, on behalf of JURIST, I have the pleasure of having with me, Professor Andrew Clapham, one of my professors here at the Graduate Institute, and a distinguished name in the field of international law, particularly on the laws of war and international humanitarian law. Professor Clapham, thank you for being with us here today and for sharing your insights with us.

Professor Andrew Clapham: Thank you for having me.

JURIST: Perfect. So, I’m going to start off with this amazing book that you wrote about the laws of war — “War.” And I think I wanted to start off this conversation by asking- what were your main motivations behind writing this book? And at the time of writing it, did you actually foresee that this topic in itself would become so important in the international climate today?

Clapham: Well, thank you. Thank you again for having me. I suppose my initial interest in writing such a book was sparked when I realized that some rules in international law and international law only apply when there’s a formal war. In other words, after there’s been a declaration of war and states consider they’re in a state of war – a concept which I refer to in the book as War with a capital W. So, there’s this particular kind of legal status that triggers some particular rules. And I realized that no academics had written on this since 1966. And I thought, maybe if I could identify that the rules no longer apply, because we no longer have a state of war and formal wars, maybe I could reduce some of the violence in the world, in my sort of, dreams. And I thought maybe I could show that some of these rules which entitle you to do things couldn’t be applied, because we don’t have wars anymore, and the logic of war. But then I realized that the situation is really much more complex, and it was a much harder task.

And the second thing I think that really triggered my interest in focusing on war, rather than armed conflict or humanitarian law, was that I noticed that politicians often were explaining their actions by saying, “well, these civilian deaths are unfortunate, but civilians die in war. It’s a war, what do you expect?” And I noticed that people were using this expression ‘war’ as if it kind of justified all kinds of things. And it tended to shut down the conversation because people didn’t really know how to respond as if somehow claiming that there’s a war going on is a good argument for death and destruction. And so, then I decided to start to look a bit more carefully at how this word was being used.

And then as I knew you were sort of going to start with this question and ask why I chose to write about it, when I thought about it this morning, there was a third factor I think that was going on. And this relates to some of the work I was doing on Guantanamo Bay and the detainees who were held there and being prosecuted there. And I noticed that the language that was used to justify holding people there, was the language of war. There was the language of enemy combatant, but the main expression which was used was ‘law of war detainees’. And again, somehow by describing somebody as a ‘law of war detainee’, this meant that one no longer had to find a proper legal basis in national law for holding people because in wartime, obviously, you’d be entitled to detain. So, I thought I needed to dig a bit deeper into that and to show that just calling somebody a ‘law of war detainee’ or calling the situation a ‘war’ is not enough as a matter of law today to hold people or detain them. And therefore, I wanted to challenge, I suppose, the war logic.

Now, you asked me if I could have foreseen or was foreseeing any of the current developments? And the short answer is obviously no. I had no knowledge or expectation that there would be a major international armed conflict or war between Ukraine and Russia, nor the conflict which erupted in Gaza last October. And indeed, that does throw up a whole lot of new questions.

JURIST: That’s right, because I think when we have been taking your classes also on this subject, we have been talking about these two case studies, and you rightly mentioned especially about the Russia Ukraine conflict. And it broke out not long after your book was published. So now it’s been more than two years since this conflict has been ongoing. And I was curious to know if you think this particular conflict in itself has shaped the laws of war in any way whatsoever, be it in a positive manner or a negative manner? How do you think this particular conflict has shaped the language of war again, and shaped international armed conflicts in the current situation?

Clapham: Yes, thank you. Well, it has thrown up this rather bizarre situation that you can be punished in Russia for describing the situation as a war and talking about this as a war. And so, people have become much more sensitive to the language of war. And of course, in turn, the Ukrainians and others have insisted on calling it a war, because that’s the descriptive way they want this to be seen, and to point out to Russia, that Russia can’t avoid its obligations by referring to this as a special operation. So, the whole debate about the significance of war has taken off.

There are a number of other aspects to the conflict, which I don’t know if I would call them positive aspects, but they have highlighted certain aspects of the laws of war in quite concrete ways. So, first of all, we have a very significant situation whereby the role of Türkiye and the rights of Türkiye under the Montreux Convention of 1936 is very relevant because Türkiye can control which warships access the Black Sea through the Turkish straits. And that treaty has been invoked by Türkiye so that battleships of all countries are not allowed through. And that’s a particular type of war situation in the Ukraine-Russia conflict that I think people wouldn’t necessarily have predicted was going to become so significant. The other quite technical issue, but your audience, I imagine, want to hear some of these technical points, is that this armed conflict between Russia and Ukraine triggers the application of Additional Protocol I. And that is quite unusual in modern situations. Most armed conflicts say, US-Iraq, didn’t trigger Protocol I. But this one does. And it means that some of the disproportionate attacks on military objectives where civilians are killed in a disproportionate way, can become, when it’s an intentional targeting, a grave breach of Additional Protocol I, and that means that such a war crime can be prosecuted in many countries around the world. So that’s a relatively new situation that hasn’t arisen.

On the particularly negative side of all of this, we see massive destruction and thousands of people being killed. And that has led, I think, to a sort of despair and rejection of international law by the general public, in the sense that law doesn’t seem to be able to prevent or punish these things. So, what’s the point of talking about it? Obviously, my job is to talk about it, and to try and reinvigorate some faith in it. The fact that so few people have been punished for it doesn’t necessarily mean that some people won’t be punished in the future. So, I think it’s too early to say that all of this leads to a negative conclusion that nobody is going to be punished, and there are going to be no reparations and it’s all a big waste of time; it’s just the struggle of the fittest, and the strongest will win.

It felt a bit like this at the beginning of the Yugoslav Wars but in the end, you know, dozens of people were prosecuted. There were all kinds of transitional justice mechanisms. It’s obviously still ongoing. But I think as lawyers, one has to be careful not to give up the ghost too quickly. There are a number of initiatives that are ongoing, and we don’t, of course know, and maybe this sounds pathetically over-optimistic, but we don’t know how many things are not targeted, and how many advances are not made precisely because people are beginning to think about the legal consequences for them and for others. So, there is a legal framework, the law is clearly being broken. But I think it’s too early to say that we should just give up. I think there will be forms of accountability. There will be a system of reparations. One of the most interesting things that I certainly didn’t predict, but which I think is occupying the minds of a lot of lawyers in this war is the extent to which the sovereign assets of Russia can be, not just frozen, but seized and reused to help with reparations in Ukraine, and that is obviously a legal question where a lot of people are exercising their brains.

JURIST: Now, those are some very interesting aspects that you brought up. And I think I can speak from the perspective of a budding international lawyer or other law students who are studying this field, which is so interesting that oftentimes it can happen that you don’t really have clarity on how things are going to shape out. But you’ve got to have that faith. And you got to have that resilience that you keep pushing on, and that you believe in the law and that you advocate for it, that justice will come even if it’s a little bit delayed. So that’s an interesting perspective. And I really appreciate that as well. So, one of the other interesting aspects of the Russia Ukraine conflict has been the legal complexities surrounding the crime of aggression particularly, and I wanted to know your thoughts on this aspect of the war. And whether you think there is any possibility of a tribunal being created sometime in the future, whether nearer or farther away, of prosecuting the crime of aggression against states or individuals specifically?

Clapham: Yes, thank you for that question. Because this, again, is quite unusual, that we have a situation where the General Assembly has passed a resolution approved by 141 countries which deplores in the strongest terms, the aggression by Russia. Of course, there are some important countries that have voted against like Russia, and some important countries that have abstained like India and China and South Africa. But still, it’s 141 countries of the world that consider that there has been an aggression. And this matters at a number of levels. It’s not just the prospect of prosecution, it relates to various other issues to deal with the idea of the acquisition of territory and so on.

But let’s stick with the question of criminal accountability for individuals. Now, having said that, it’s unusual that we have a clear acceptance by a number of states that there is an aggression, we have aggression in the International Criminal Court statute. The unfortunate news is that the ICC cannot prosecute individuals from Russia, because of the way the amendment was done to the Rome Statute; it is impossible to prosecute a national from a non-state party. So as your question implies, perhaps there needs to be another type of tribunal. And indeed, a lot of states have been meeting on this and trying to draw up something, I have to say I don’t think the prospects are very clear at the moment as to what kind of tribunal it would be and where it would be. As an interim phase, the EU has set up a centre in The Hague, which is called the International Centre for the Prosecution of the Crime of Aggression against Ukraine. And that is a series of national prosecutors from Europe coordinating their information and the prospects of prosecution and imagining a future where somebody is being prosecuted. But of course, it’s not enough to just capture people’s imagination, you need to capture the aggressors. And you know, as long as one is dealing with the leadership of Russia, I think it’s, to be frank, quite unlikely that the acting leadership are going to be captured and prosecuted for aggression. Having said that, the symbolism and the enthusiasm to think about this is there. And frankly, I think that’s quite a good idea that we start to conceive of aggression as a crime, like a war crime or a crime of genocide or crime against humanity. Why? Because even if the prospect of capturing and acting head of state and a nuclear power is minimal, if we’re honest, I think it’s time to start thinking about those who aid and assist the aggression. And that could mean that people who are supplying arms to an aggressive state could perhaps be prosecuted for influencing the aggression or facilitating an aggression. And I think the intellectual work to work out how wide the aggression net should be cast has not been done. It was cast relatively widely in the Nuremberg trials and there was some thinking in the Tokyo trials. But that’s obviously a long time ago. And I think today it’s worth considering, not just the leadership crime, but those who assist in the crime and whether they might too be prosecuted. This is a controversial area, but I put it on the table for your viewers or listeners to start to think about, I mean, in particular, those who manufacture arms and supply them to an aggressive state knowing that they’re going to be used as part of the aggression. It seems to me that they are contributing to an international crime and could themselves be held criminally liable. Perhaps not in the International Criminal Court, but perhaps through some other mechanisms.

JURIST: That’s right. And that is a new angle to what we have been studying so far, where we have only been looking at the parties involved in this conflict and not at other parties who could be assisting from the sidelines or the background. So just one short question on this- are you talking about even holding these people accountable? Do you think there’s a scope for only states to be held a little bit more accountable? Or are you also referring to individuals separately, who are aiding and abetting in this action of manufacturing weapons and ammunitions for that reason?

Clapham: Yes, thank you. Well, I suppose I’m opening up a new vista for saying maybe we should be thinking about some individuals and not just thinking about the President or the Minister of Defence. And indeed, some of those from the German armaments factories, and some of the industrialists as individuals were prosecuted in connection with the crime of aggression in the Second World War. I’m also maybe more ambitiously thinking that maybe some companies could be prosecuted for the crime of aggression. The International Law Commission, in its new articles on crimes against humanity foresees that legal persons should be held accountable for crimes against humanity. So, I would think legal persons could also be held accountable for the crime of aggression, or aiding and assisting in the crime of aggression. And if you think about it, many of the arms manufacturers are obviously legal corporations, and if they are knowingly supplying arms to an aggressive state, I think that’s a discussion worth having now. I don’t know how many other people would join in this thinking it’s probably a bit too creative for some, but I think it’s worth making the point and starting a debate.

JURIST: For sure, the way I look at it is that it’s definitely opening up a pandora’s box of a lot of other issues, which we tend to overlook in such situations. But one of those issues also which has been very much highlighted through the Russia Ukraine conflict has been the involvement of non-state actors like the Wagner group. These questions relating to the involvement of non-state actors or subjects or angles were previously not touched upon so much by the laws of war or the laws of armed conflict. Do you think there is some kind of evolution or refocus required in these laws to focus more on these newer angles that are emerging now?

Clapham: The short answer is yes. As I just said, I think there’s plenty of scope to think about corporate commission of war crimes and crimes against humanity and assisting and aggression. And I think the existence of the Wagner group, as you mentioned, and their notoriety and the horrific crimes that they’ve been accused of, sort of starts to make the case that lawyers should start to think not only about state responsibility and individual responsibility, but a sense of corporate responsibility. The Wagner group’s responsibilities are complex because of the mercenary angle, and trying to ensure that individuals could be prosecuted for mercenarism. I won’t get into a long thing about that. But this is an area where the law could probably be adjusted, because it’s very difficult to prosecute somebody for mercenarism. But the actual abuses and violations which the individual members of Wagner had been accused of would easily qualify as war crimes. So perhaps we don’t need to get too distracted into the mercenary aspect of it, which is a sort of a specialized topic, but just to think about holding those individuals accountable, and ensuring that any legal entity could be prosecuted as such or sued as such.

This is easy for me to say. it’s obviously much more complicated, you know, under which jurisdiction and where would they (Wagner) keep their assets and so on. But Wagner is not the only non-state actor, as you put it, that’s been involved in these armed conflicts, and indeed, some of the private security companies that the Americans used in Iraq, have been successfully prosecuted. Both the individuals and there have been legal suits against the company themselves. I’m thinking of Blackwater, where in the end, the victims did get over a million dollars through the settlement of the dispute, even if there wasn’t the final conclusion of a suit of law before a judge. So, holding entities beyond the state accountable and beyond international criminal law is, in my view, very important. And I think sometimes, when we teach this, and when we read international law books, there’s a bit of a lack of imagination in how to do this, perhaps in a more comprehensive way, especially on behalf of victims, who often won’t be able to get reparations if you just take a state responsibility attitude.

JURIST: I completely agree with your point. Because even with the fact that sometimes the law is lacking and not focusing on these aspects, but even having the law and filling that gap that’s missing can lead to a better accountability mechanism, which can lead to more deterrence and can lead to greater justice for victims. So that is definitely something that all of us should be thinking about. For even those of us who are just starting out in the field and learning from you all. So, another question that I had is about conflicts like Russia Ukraine, and the current situation, ongoing situation in Gaza. And whether you think that these conflicts or these emerging situations are likely to change the narrative of the laws of war, armed conflict or international humanitarian law in some ways, and if you had any particular thoughts on the ways in which they should be changed?

Clapham: I think what’s happened with both of those conflicts has led to a huge uptick, if you like, in the interest of the laws of war, even if at the same time, it’s led to, as I suggested before, considerable skepticism. So, these things are not completely incompatible in that the skeptics will continue to turn away from international law and the laws of war; but some of the people who are involved in these decisions and who stand to lose or to gain in how the laws of war are interpreted, are actually increasing their attention and their energy in terms of interpreting the laws of war. So, I don’t think that there will be new laws of war or amended laws of war, if you’re asking me, that’s my honest opinion. But what we will have and what we’re currently experiencing are fights over the interpretation of these rules, because the stakes are quite high at one level, because a state will be accused of violating the law and individuals could indeed be prosecuted for war crimes. And so there is a fight ongoing over a number of topics to expand or constrict the scope of these rules to suit those who are either the attacker or the victims of those violations.

So just to give a couple of examples, I think we’ve seen incredible attention to the rules around human shields. And when is it a war crime to use human shields and when can human shields be counted, not as collateral damage, but as civilians directly participating in hostilities, and somehow getting counted as part of the military objective. So, there’s a battle going on there between people who want more possibilities to attack when human shields or civilians are in the area, and those who consider that we should be narrowing those possibilities.

Similarly, as you know, in both conflicts, there have been hospitals which have come under attack. And in both situations, you have legal argumentation about when a hospital loses its immunity from attack, and becomes vulnerable to being considered a military objective. And on both sides of the equation, if you like, there will be intense arguments as to why it’s okay or not okay, to attack a hospital in that particular situation. And the results of those legal argumentations and any eventual cases, which I think will inevitably happen, will, in a way shape the law. So, it won’t get amended. There won’t be new treaties, as far as I can see. But what there will be is new boundaries as to what is possible. And I think that’s why it’s important for as many people as possible to get involved in these arguments, and not to leave it up to those who shout loudest and are the most concerned.

JURIST: That’s a great answer. I completely agree with those points. And I think at this point of time, I will sort of move on to my last question and end this very interesting conversation with how we started it- by bringing it back to your book. Knowing what you know now and seeing what you have seen now along with the rest of the world, is there anything that you would have done differently at the time of writing the book, maybe some different chapters that you would have incorporated, maybe focused on a particular angle? What were your thoughts, or what would your thoughts have been knowing that this topic in itself would become so relevant on the international scale very soon?

Clapham:  I think if I was writing it today, I would obviously have to include quotes from the speeches by politicians, where they are claiming that there is no war and therefore certain things are not possible, and there’s nothing to worry about. And of course, vice versa, in the Israeli situation where they are claiming there is a war situation, and this entitles them to have special powers and to organize their decisions in a special way. And so, that whole discourse about what war means and what people understand by it really requires somebody, not me now, to analyze that and to think about how we understand this concept, and how we could actually appropriate the concept and use it to avoid violence, rather than allowing people to use it to justify their violence. There is one sort of chapter, if I was encouraging somebody to write about this in the future, or if I were to start writing it again today, dealing with a topic which I did not predict, and which ought to be tackled, and that is the whole topic of artificial intelligence. I think that artificial intelligence is affecting how targeting is done. And it’s affecting how wars are being fought. And it’s certainly affecting how wars will be fought. But that’s a topic for somebody else to take up. It’s not for me, but I would encourage those of you out there, to think hard, and to bring some sort of morality into this topic, and not leave it to just take over the world with its own sort of technological dynamic.

JURIST: I think that’s a great way to bring this to an end that as lawyers, we tend to think more about the law and the law in isolation. But what we need to redirect our focus towards now is the intersectionality between different aspects like technology, and even looking at the law from more of a morality or an ethics perspective, which I know is one of your areas of interest as well, that you’re working on. So that is amazing. And we are at the end of our conversation here today. But thank you so much for taking out your time, and contributing to this brief, but extremely interesting conversation about the laws of war, and the current conflicts that are happening. Just to end from the perspective of our readership, and our audience around the world- as young lawyers who are wishing to enter into this field, would you have any advice or tips that you would like to impart to our readers, or encourage them to work on, or skills that they should develop if they are intending to build their careers in such fields?

Clapham: Well, thank you. I suppose I’ve left a trail of topics that I think deserve everyone’s attention. And if you’re asking me for sort of final thoughts, I would really encourage people not to accept what people say is realistic in times of war, but to reach for what you think the law should say and how people should behave. I find it quite frustrating in the meetings that I go to when I tried to make a point and people just bat it down by saying “but that’s not realistic in time of war”, as if war, you know, asks you to just accept too much, and I don’t think we should accept it. And I would encourage you all to push back.