Author Archive for
Chris Borgen

Further Debate Over Whether There is a “Least Harmful Means” Rule in the Law of Armed Conflict

by Chris Borgen

As readers of Opinio Juris know, Ryan Goodman argues in a forthcoming article in the European Journal of International Law  that:

“the modern law of armed conflict supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided.”

Whether an obligation under the law of armed conflict (LOAC) to use the least harmful means possible against enemy belligerents exists has been the subject of much debate on this blog (1, 2, 3) and at Lawfare (see, for example, this)  and Jens Ohlin has also explored similar issues in his scholarship on the duty to capture.  I want to give readers a “heads-up” that Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen, who participated in the Lawfare discussion of Ryan’s piece (go to this link for a list that includes their posts, or go directly to their first post), have just posted to SSRN a full length article being published in the U.S. Naval War College’s International Law Studies on the question of whether a “least harmful means” rule exists. Their short answer is in the title: “Belligerent Targeting and the Invalidity of the Least Harmful Means Rule.” Here’s the abstract:

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this obligation to capture rather than kill, or use the least harmful means to incapacitate enemy belligerents, do not contest the general authority to employ deadly force derived from belligerent status determinations. Instead, they insist that the conditions that rebut this presumptive attack authority are broader than the traditional understanding of the meaning of hors de combat embraced by military experts, and include any situation where an enemy belligerent who has yet to be rendered physically incapable of engaging in hostilities may be subdued without subjecting friendly forces to significant risk of harm.

This essay offers our collective and — we hope — comprehensive rebuttal of this least harmful means LOAC interpretation. First, Section I reviews the fundamental principles of the LOAC that permit status-based attacks against enemy belligerents with combat power highly likely to cause death unless and until the enemy is rendered physically incapable of participating in hostilities. Section II thoroughly analyzes the affirmative prohibitions on the use of force that the LOAC — and specifically Additional Protocol I — does require, and also highlights what Additional Protocol I does not require. In particular, the fact that Additional Protocol I — by any account the most humanitarian-oriented LOAC treaty ever developed — did not impose any affirmative least harmful means obligation vis à vis belligerents undermines any assertion that such an obligation may be derived from the positive LOAC. Finally, and perhaps most importantly, Section III emphasizes how this least harmful means concept, especially when derived from an expanded interpretation of the meaning of the concept of hors de combat, is fundamentally inconsistent with the tactical, operational, and strategic objectives that dictate employment of military power.

The LOAC must, as it has historically, remain rationally grounded in the realities of warfare. We are confident that anyone grappling with this issue understands that decisions related to the employment of combat power are not resolved in the quiet and safe confines of law libraries, academic conferences, or even courtrooms; they are resolved in the intensely demanding situations into which our nation thrusts our armed forces. The law must, as it always has, remain animated by the realities of warfare in the effort to strike a continuing credible balance between the authority to prevail on the battlefield and humanitarian objective of limiting unnecessary suffering. The clarity of the existing paradigm achieves that goal and does not include any legal obligation to use the least harmful means in targeting enemy belligerent personnel.

Deadline Approaching for Submissions to AJIL’s Agora on post-Kiobel Human Rights Litigation

by Chris Borgen

A quick reminder to all readers that the American Journal of International Law is looking for submission on “Transnational Human Rights Litigation After Kiobel.” You can see Opinio Juris’ own discussion on the topic here.  The June 15th deadline for the AJIL Agora is approaching. Here is the call for submissions, which is also available on the ASIL’s website.

Call for AJIL Agora Submissions: 

Transnational Human Rights Litigation After Kiobel
The American Journal of International Law is calling for short submissions (maximum 3000 words, including footnotes) for a forthcoming agora on “Transnational Human Rights Litigation After Kiobel.” Contributions must not have been previously published in whole or in substantial part (on the web or elsewhere). Some of the chosen contributions will be published in the October 2013 issue of the Journal. Other selected contributions may be published electronically in a special ASIL online publication. All contributions must be submitted no later than June 15 in order to be considered. Contributions on U.S. law issues, and on comparative and non-U.S. dimensions, are welcome. The editors aim to publish a set of distinctive contributions, rather than many making similar points. All selections for publication in AJIL or in the ASIL online publication will be peer reviewed by a committee of the AJIL editorial board consisting of Carlos Vázquez (chair), Curtis Bradley, and Ingrid Wuerth, in consultation with Co-Editors in Chief José Alvarez and Benedict Kingsbury. Decisions on publication (including requests for revisions) will be made on a rolling basis, but in any case no later than June 30. Submit contributions to ajil [at] asil [dot] org with “Kiobel Agora” in the subject line.

Harold Koh’s Speech at the Oxford Union

by Chris Borgen

Former State Department Legal Adviser Harold Koh spoke yesterday at the Oxford Union. His speech, “How to End the Forever War?” (link to .pdf) is a reflection on the Obama Administration’s  foreign policy, in particular in regards to the rule of law.  It is also a talk set to contrast the Obama Administration’s approach to international law and foreign policy from the Bush Administration’s. He opens in this way:

Now that I have returned to the academy, I tend to hear three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that “the Obama approach to that conflict has become just like the Bush approach;” and third, that we have no available strategy to bring this conflict to an end in the near future. Tonight, let me reject all three propositions.

Let me ask what the real question is that faces us, suggest the right approach to addressing it, and outline three elements of an answer. In a nutshell, our question should be: “How to End the Forever War?” Our Approach should be what I would call: “Translate, not Black Hole.” And our three-part answer should be: “(1) Disengage from Afghanistan, (2) Close Guantanamo, and (3) Discipline Drones.”

This speech is a sort of book-end with former Department of Defense General Counsel Jeh Johnson’s recent speech (also at the Oxford Union) that mentioned there will come a time when we transition from looking at this as an armed conflict against an organized enemy to a counter-terrorism effort against individuals. Koh’s speech extends this theme, giving his perspectives on how to get to that tipping point. Well worth the read.

Cyberconflict: Threats, Responses and the Role of Law

by Chris Borgen

Today (April 12) St. John’s Law School of Law is hosting a conference in New York  in cooperation with NATO’s Allied Command Transformation group entitled Cyberconflict: Threats, Responses and the Rule of Law. The conference brings together experts from the armed forces, academia, and law enforcement to consider issues at the intersection of technology, law enforcement, national security, civil liberties and international law. In an environment where individual, independent hackers can do the same damage as a government-sponsored cyberattack, how can states craft legal tools, military strategies, and intelligence operations that address national security concerns and differentiate between cyberwarriors and amateur hackers acting on their own?

The opening panel, moderated by Peggy McGuinness is “Cyberwar, Jus ad Bellum, Jus in Bello and Views from a NATO Perspective.” Panelists David Fidler (Indiana University Maurer School of Law), Richard Pregent (Legal Advisor for NATO Allied Command Counterintelligence), and Alex Vandurme (NATO Computer Incident Response Capability) will consider  public international law, domestic law, and how it effects NATO strategy regarding cyberwar.

I will moderate the panel on “Public International Law, National Security Law and Cyberconflicts.” Geoffrey Corn (South Texas College of Law), Sean Watts (Creighton University School of Law), and Richard Jackson (Special Assistant to the US Army Judge Advocate General for Law of War Matters)  will consider questions such as whether cyberwarfare can conform to the International Humanitarian Law principles of humanity, proportionality, distinction, and military necessity,  whether the U.S. should pursue a cyberwar treaty, and whether the President order extended cyberattacks without Congressional authorization?

Finally, Jeff Walker (St. John’s) will moderate the session on “Constitutional Issues in Addressing CyberWar/CyberEspionage/CyberCrime.”  Susan Brenner (University of Dayton School of Law), Amy Harman Burkart (Cybercrime Unit, U. S. Attorney’s Office for the District of Massachusetts), and Christopher Soghoian (The American Civil Liberties Union) will address questions such as what legal framework applies when states defend against, investigate, and prosecute non-state-actors who engage in cyber-espionage or computer-based crime and how do we differentiate between cybercrime and cyber war?

I will post on the substantive issues in the coming days. The St. John’s Journal of International and Comparative Law will also have a symposium issue in the fall devoted to the conference papers.

ASIL Launches the Space Law Interest Group

by Chris Borgen

Lawyers take note: science fiction is become less fiction and more science every day. In the last year we have witnessed the launch of the first commercially built capsule to resupply the International Space Station (ISS), the announcement of significant private ventures aimed at eventually mining asteroids (1, 2, see also this), the announcement of a plan to send two people on a privately-funded Mars flyby mission in 2018, an asteroid exploding over Russia on the same day that another flies by the Earth beneath many satellites, and the formation of a company attempting to land humans on Mars as of 2023… on a one-way trip.

Humanity’s exploration of space may only be in its earliest stages, but the legal implications are already widespread and varied.  Some activities, such as multilateral cooperation on “big science” projects like the ISS or responding to the threats posed by asteroids, are government-led.   But the private sector is also undertaking new, increasingly audacious projects—from expanding the commercial space launch market to mining asteroids. Space law is an evolving, robust practice area for international lawyers.

And so it is fitting that the American Society of International Law has started a new Space Law Interest Group (Space IG).  Brian Israel, of the State Department’s Office of the Legal Adviser, and I are currently the Space IG’s co-chairs. We look forward to working on the group’s programs for this next year. (We should note that the person who most recently sent in a suggestion that the ASIL should have such an interest group is actually a high school student member of the ASIL. Talk about the future of the legal profession!)

While the actual activities of the Space IG will be designed by the members, the founding conception is that it will serve as a forum, resource, and community for scholars and practitioners of the international law governing the use and exploration of outer space.  And it is a community for ASIL Members to connect with others interested in these issues, and a bridge to other space law communities around the world.

More generally, the Space IG, along with the new International Law and Technology Interest Group, are part of the ASIL’s expanding programming on the relationship of society and technology. And there are many issues related to space and technology that warrant consideration by international lawyers.

Yet that observation is nothing new. Since the dawn of the space age, international law has played an essential role in the peaceful use of outer space by an ever-growing range of actors. The space applications that are ubiquitous in modern life—from communications and navigation to weather forecasts and disaster response—are enabled in significant measure by a robust international regime comprising a settled international legal framework as well as non-binding principles and guidelines.

It is an exciting time for space exploration and an important moment for international law. Issues of long-term sustainability, the prospect of audacious, unprecedented uses of space, and emerging commercial space activities present significant governance challenges and important roles for international lawyers.

We will be having the first meeting of the Space IG at this year’s Annual Meeting of the ASIL.  Regardless as to whether you are able to attend the Annual Meeting, if you are interested in possibly joining the group, please contact me.


Besides the Year-End Reviews, How About Looking Forward to the Year, or the Century, to Come?

by Chris Borgen

‘Tis the season for year-in-reviews, for taking stock or where we’ve been. ‘Tis also the season for making resolutions about what we want to do in the coming year. (And a week from now will be the season for breaking those resolutions.)

But in the midst of the backward glances and hopeful promises, it might be interesting not only to make promises about what we want to do (Exercise more! Live “in the present!” Reconsider the scope of the drone program! Close Guantanamo!) but also consider where we are going, given our current paths.

I’m not about to get all Nate Silver statistical. I wish I could, but I can’t; I don’t have the quantitative chops. (And Nate Silver may not be globally scalable… but then again, who is?) However, I do suggest that, as international lawyers, it is good to think about some trends about where society is headed.

I am especially interested in the implications of technological change on efforts at coordinated multinational regulation… where regulation of new tech may be beneficial and where it may be detrimental to society and/or to innovation. (Uh, you know, issues having to do with African cyberpunk, DNA hacking and stuff like that. And don’t even let Ken Anderson (1, 2, 3, etc.) or me (1, 2, etc.) get started on robots…)

So I was happy to see that the current issue of Scientific American looks at “The Future of Science: 50, 100, and 150 Years from Now.” Heady stuff. Ubiquitous computing, biotech, colonizing Mars, possibly even my long-awaited flying cars. But reading this with the cool eye of a lawyer (as opposed to with the racing heart of my geeky Star Trek-loving, flying car-coveting self) one begins to see how intertwined these various scientific and technological topics are with questions of law and regulation.

When it comes to conversations about economic and technological innovation, the standard result is that domestic lawyers get slagged and international lawyers get ignored. But as a general matter, that shouldn’t be the norm in either case. And in these essays, and in some other recent writings on technological change, it isn’t…

(Continue reading via the link)

Treaties, Fear-Mongering, and the Limits of the Bully Pulpit

by Chris Borgen

John Bellinger’s op-ed in today’s New York Times,Obama’s Weakness on Treaties,”  is clear on an important tactical issue on treaty passage but somewhat muted on a more improtant, strategic, issue.   His main argument is that, given rising Republican intransigence against treaties–any treaties–, President Obama should be trying harder to pass treaties like the UN Convention on the Rights of Persons with Disabilities.

OK, but I think Bellinger’s argument puts the emphasis on the wrong issue.  It should be, given rising Republican intransigence against treaties–any treaties–, President Obama needs to work harder than previous Presidents to get any treaty passed. (And, I would add, the President actually may not be the most important voice in this discussion.)

The question of emphasis is not about the blame game.  There are plenty of missteps to go around and Bellinger catalogues those of the Administration.  But there have always been missteps and false starts; the difference is that now there are so many Republicans who refuse to even consider the possibility of treaty passage as an end point. The Obama administration may have made a tactical error with the timing of when it brought the Disabilities Convention to the Senate, but the bigger issue, the issue that Republican foreign policy leaders really need to address, is the black helicopter talk and fear-mongering by the right wing.

The ironic thing, of course, is the great heritage of internationalism in the Republican party.  A heritage being carried forward by leaders like John Bellinger and Richard Lugar. But then again, Senator Lugar was defeated in his own primary by a Tea Party Republican.  So what I would say to Bellinger is this: your advice to the President is helpful, but the elephant in the room is that the Republican base is scared and is not interested in listening to the President, especially on the issue of treaties. There is a limit to what the President, who is constantly villified on right wing radio and TV, can do to calm the Republican base on the issue of treaties, which are incessantly described by right wing pundits and pols as giving away our sovereignty and capitulating to the UN.  In other words, by these mutually reinforcing arguments, the person you would most like to use the bully pulpit to ensure passage of these treaties is the person least likely to be trusted by the right wing.

So, my advice to my Republican friends would be this: Please talk amongst yourselves a little bit. This is a moment for Republicans to calm their own party’s fears about treaties. We can have a great national dialogue about which treaties to sign, but first we need to have someone to talk to. Right now, what you hear coming from the Republican Party is “No, No, No.” No to this treaty. No to that treaty. No to any treaty. Of course there are Republicans who at times support the passage of various treaties. But far too few. Thirty-eight Republican senators voted against the Disabilities Convention, largely focusing on its (perceived)  implications for that Tea Party favorite issue, home schooling.

I’m sure the Administration will work on improving the timing of when it brings treaties to the Senate and on its bully pulpit issues. But relying on the bully pulpit has its limits. I prefer reasoned discourse. It is one thing not to push as hard as possible for a treaty; it is another to constantly push against any and all treaties. That is the real problem.  And that is a problem that the Republican leadership and punditocracy, not the President, is in the best position to address. Should they choose to do so.



Kristen Boon Joins Opinio Juris

by Chris Borgen

We are happy to announce that this Monday Professor Kristen Boon of Seton Hall Law School will join Opinio Juris as our newest member.

Kristen’s articles range across a variety of topics in international law and, in particular, she has become a respected scholar regarding questions of the responsibility of international organizations and of states. She also writes on issues related to international law and post-conflict zones, and, among other things, is planning to track developments in the law of international organizations for the blog.

Kristen is a tenured faculty member at Seton Hall and is the Director of the Law School’s International Programs. Her previous experience includes clerking for Justice Ian Binnie of the Supreme Court of Canada and working as a litigation associate at Debevoise & Plimpton in New York.

And, by the way, you can also credit/blame Kristen for having introduced Julian and me to each other about thirteen years ago, which later played a part in this blog even being founded.

So it is with great pleasure that we welcome Kristen Boon, a long-time colleague, as our newest member.

Harold Koh on International Law in Cyberspace

by Chris Borgen

Yesterday, Harold Koh, the Legal Adviser of the U.S. State Department, spoke at the U.S. Cyber Command Inter-Agency Legal Conference on the applicability of international law to cyberspace and, particularly, cyberwar/ cyberconflict. For a couple of takes on the speech, see the Washington Post here and Defense News, here.

In our ongoing efforts to make full-text presentations of international legal relevance more easily accessible, we attach the text of Koh’s speech, as prepared for delivery.


USCYBERCOM Inter-Agency Legal Conference
Ft. Meade, MD
September 18, 2012

Harold Hongju Koh [Legal Adviser, U.S. Department of State]

Thank you, Colonel Brown, for your kind invitation to speak here today at this very important conference on “the roles of cyber in national defense.” I have been an international lawyer for more than thirty years, a government lawyer practicing international law for more than a decade, and the State Department’s Legal Adviser for nearly 3 ½ years. While my daily workload covers many of the bread and butter issues of international law—diplomatic immunity, the law of the sea, international humanitarian law, treaty interpretation—like many of you, I find more and more of my time is spent grappling with the question of how international law applies in cyberspace.

Everyone here knows that cyberspace presents new opportunities and new challenges for the United States in every foreign policy realm, including national defense. But for international lawyers, it also presents cutting-edge issues of international law, which go to a very fundamental question: how do we apply old laws of war to new cyber-circumstances, staying faithful to enduring principles, while accounting for changing times and technologies?

Many, many international lawyers here in the U.S. Government and around the world have struggled with this question, so today I’d like to present an overview of how we in the U.S. Government have gone about meeting this challenge….

NYU Journal of International Law and Politics Becomes a Peer-Reviewed Journal

by Chris Borgen

NYU’s Journal of International Law and Politics (JILP) has recently announced that it “is transforming from a purely student edited journal into a peer reviewed journal in which all leading articles will henceforth be selected with the assistance of leading academics in the field.” See the announcement here.

Why the change? The announcement explains:

Authors publishing in the new JILP will benefit from additional editorial input and our readers can expect high-quality scholarship in all areas of international law and politics.

This transformation was student-initiated. The JILP will continue to involve students in all respects but will involve legal scholars who are affiliated with NYU (either as members of the permanent faculty or in other capacities) in the selection and substantive editing of articles in their area of expertise. The new JILP will continue to publish student notes and book annotations. It will maintain its broad focus on all aspects of international law and seek the finest scholarship from both established authors as well as younger scholars.

The inaugural issue will have as its managing editor José E. Alvarez

While JILP will now use peer-review for all articles, it is clear that students will still be involved throughout the process (and as a former JILP Symposium Editor, I’m happy to hear this). The new submissions process will include both student and faculty involvement:

All manuscripts received will be evaluated by our Editor in Chief and the Faculty Managing Editor for that particular issue, by several senior articles and managing editors from its Editorial Board, and by one or two referees from the panel of peer reviewers listed on its mast head consisting of NYU faculty members and other affiliated faculty.

Student-run law journals in the U.S. often turn their law school’s faculty for guidance on whether or not to accept certain articles. What JILP is doing, though, is regularizing and institutionalizing this relationship, as well as placing the faculty in the role of substantive editors and putting a faculty member in charge of the whole process. Whether this is a harbinger of similar shifts by other journals remains to be seen…

Movsesian on “Ax Murderers, Values, and International Law”

by Chris Borgen

My colleague Mark Movsesian has a post at the St. John’s Center for Law and Religion Forum concerning the case of Ramil Safarov. He begins:

At a NATO conference in Hungary in 2004, an Azeri officer, Ramil Safarov, murdered one of the other participants, an Armenian officer named Gurgen Margaryan. Actually, that doesn’t quite capture it. Safarov broke into Margaryan’s room, stabbed him while he was sleeping, then severed his neck with an ax. Safarov confessed to the crime; Hungary convicted him of murder and sentenced him to life imprisonment. Two weeks ago, Hungary extradited Safarov to Azerbaijan, which promptly pardoned him, promoted him, restored his back pay for his years in the Hungarian prison, and generally gave him a hero’s welcome.

He then asks “How can one begin to make sense of this incredible episode?” His answer touches on the tensions over Nagorno-Karabakh, conflicting  interpretations of the Council of Europe’s Convention on the Transfer of Sentenced Persons, and Hungary’s foreign policy.

I had not known about this surprising incident before hearing about it from Mark. His post is well worth the read.

International Law and Literature: Daredevil and the Right to a Fair and Public Hearing

by Chris Borgen

Courtesy of Christopher Libertino, my favorite film composer (and former college roommate), I want to point out that a recent post by James Daily on Subculture for the Cultured is about the international law ramifications of the actions of the superhero Daredevil in his current story arc. Daily is an attorney and a research associate at the Hoover Institution’s Project on Commercializing Innovation. His entries often focus on various legal issues in superhero comics. Here’s the set-up:

The most recent issue of Mark Waid’s fantastic run of Daredevil raises some interesting questions related to international law, which is always a tricky area. Spoilers ahead!

If you haven’t been following Daredevil lately, you should because it’s really great, but here’s the story so far: The main story arc over the past few issues has been about Daredevil’s theft of a disc containing financial information about all of the major criminal organization in the world (e.g. AIM, HYDRA). Daredevil uncovered a plan to turn Latveria into a financial haven for these organizations, which would be highly profitable for Latveria. By stopping the plan, Daredevil made Latveria more than a bit unhappy, and so he was abducted from New York and taken to Latveria’s capital, where he was summarily punished for his actions. (I won’t reveal the punishment because it’s a spoiler for the next issue). Just before the punishment commences, Daredevil demands “an opportunity to mount a defense in accordance with international law!” But just what does this mean?

Daily goes on to explain the basics of obligation under treaties and customary international law and is savvy enough to ask whether Latveria, which is controlled by Dr. Doom, would actually sign-on to the International Covenant on Civil and Political Rights. The one thing I would adjust in his pithy summary is the cross-wiring of customary international law and jus cogens. See this:

Some aspects of international law are so fundamental and universal that they are considered jus cogens, also called “peremptory norms.” This is the highest kind of customary international law, and it is considered binding on a state even if the state has no explicit law on the subject. Examples of jus cogens include the right to self defense and the prohibitions against slavery and genocide. Judge Patrick Robinson, who presided over the trial of Slobodan Milošević, has written that the right to a fair trial is also a peremptory norm. So according to customary international law, Daredevil has a right to a fair trial, which presumably includes the right to mount a defense. In what way is this binding on Latveria?

Customary international law “is not binding on a nation in the same measure that municipal law is binding on the citizen, but it is sustained by very cogent considerations of morality, commercial advantage, and fear of hostile attack.” 44B Am. Jur. 2d Int’l Law § 7. Alas for Daredevil, Latveria is a nation unconcerned with morality and only vaguely concerned with commercial advantage or fear of hostile attack.

I would pull these strands apart. First, considering customary international law, my main concern would be whether Latveria was a persistent objector to the establishment of a right to a fair trial.  While I am not conversant in the full state practice of Latveria, a quick perusal of Dr. Doom’s shenanigans make this a real possibility (but which of his actions are state action in his official capacity and which are ultra vires and imputable only to him?).

Anyway, from there we can make the second argument based on jus cogens, not likening it to advanced customary international law, but as an independent source of law not based on the prevalence of state practice. And here we would fall into the standard arguments of how one can–or cannot–discern jus cogens.

I hope Daily posts more on international law, national security, and superheroes. As we’ve been writing (for example: 1, 2, 3) getting a conversation going on representations of international law in popular culture can inform the public as to how international law does and does not work. And, in any case, somebody needs to sort out the (real) Pentagon’s snit over the operational mandate for SHIELD.

UPDATE: see also Daily’s blog Law and the Multiverse!  It includes a long post on SHIELD and illegal orders under the UCMJ.  I’ll definitely be reading this blog going forward.  ‘Nuff said.