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Jens David Ohlin

Håkan Friman

by Jens David Ohlin

I am very sorry to report the shocking news, that many have already seen on Twitter, that Håkan Friman has passed away, much too young.

Anyone involved in international criminal justice surely knows Håkan’s name, and more likely than not, knew Håkan personally. In addition to his many many academic publications on international criminal law (including the well-known Introduction to International Criminal Law and Procedure by him, Robert Cryer, Darryl Robinson, and Elizabeth Wilmshurst), Håkan was a Judge on the Solna District Court in Sweden, and also held several academic appointments along the way.  Håkan also had a distinguished career with Sweden’s ministry of justice and was a key member of Sweden’s ICC delegation to the Rome Diplomatic Conference, where it all began.  He was a mainstay of academic conferences on multiple continents.  I hosted him at Cornell once for my course called the Jurisprudence of War, where he led a masterful session on the crime of aggression and the Kampala amendments. On more than one occasion, his name came up in conversations I had with others when we discussed ideal candidates to be a judge on the ICC some day.

More importantly, Håkan was an absolute gentleman to every person in the profession.  It didn’t matter whether you were the most junior of doctoral researchers or the most senior jurist at an international tribunal. He was equally kind and generous to everyone.

He will be missed.

 

UPDATE: The International Criminal Court has issued this statement:

It is with great sadness that the International Criminal Court learnt of the sudden passing of Senior Judge Håkan Friman, Head of Division at Solna District Court (Sweden) on Monday, 17 October 2016.

As a former member of the Swedish Delegation on the ICC, a magistrate and the author of many international criminal law publications, Mr Friman made an invaluable and lasting contribution to international criminal justice. Mr Friman had a prominent role in the drafting and adoption of the Rome Statute, as well as in the development of the Rules of Procedure and Evidence and Regulations of the Court. He was also called upon on numerous occasions in an expert capacity to assist in initiatives to enhance the efficiency and effectiveness of the Court’s operations. His commitment, expertise and warm personality earned him countless friends in the field of international criminal justice.

The Court presents its sincere condolences to Håkan Friman’s family and friends in these difficult moments.

No Detention Plan for ISIS

by Jens David Ohlin

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government.  It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government.  And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

Was the Kunduz Hospital Attack a War Crime?

by Jens David Ohlin

The Pentagon has released its report on the U.S. air assault against a hospital in Kunduz, Afghanistan, in October. The picture painted by the Pentagon report is pretty damning. The attack killed 42 people and turned out to be a giant mistake. The U.S. attacked the wrong building.

Initially, some Afghanistan officials suggested that insurgents had taken up positions in the hospital—an allegation that spurred an intense legal debate about whether, and when, the presence of such fighters would render the hospital a legitimate military target under LOAC. The Pentagon report makes clear that these allegations were unfounded. The insurgents were located in a different building, and the U.S. hit the wrong target.

The Pentagon report details a litany of mistakes—not just a single mistake but indeed a “cascade” of errors. The mistakes were clearly evidence of unprofessional behavior and deserving of reprimands. A total of 16 Americans involved in the attacked were officially disciplined administratively.

But was the attack criminal? The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent (more on that later), but the civilian killings were not performed with purpose.

The New York Times had this to say about reckless attacks on civilians:

The failure to bring any criminal charges was “simply put, inexplicable,” said John Sifton, the Asia policy director of Human Rights Watch.

There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, he added, and recklessness or negligence does not necessarily absolve someone of criminal responsibility under the United States military code.

Is Sifton right about this?

The answer to this question is complicated. I’ve written an entire article about this, Targeting and the Concept of Intent, and I can’t go into that level of detail in a blog post. And even my full-length article did not fully address all angles of the question. The issue is exceedingly complex. But let’s make some preliminary observations.

The Rome Statute includes two particular war crimes of interest to the discussion.

The first provision defines as a war crime:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

The second provision defines as a war crime:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

The first war crime is a violation of the principle of distinction: intentionally killing civilians. The second war crime is a violation of the principle of proportionality: causing disproportionate collateral damage.

The problem with applying the first war crime provision from the Rome Statute is that the attack against the civilians in the Hospital building in Kunduz did not obviously involve “intentionally directing attacks against the civilian population.”

Now here is where things get complicated. The word “intentionally” does not have a stable meaning across all legal cultures. As I note in my article, the word intentionally is generally understood in common law countries as equivalent to purpose or knowledge, depending on the circumstances. But some criminal lawyers trained in civil law jurisdictions are more likely than their common law counterparts to give the phrase “intentionally” a much wider definition, one that includes not just purpose and knowledge but also recklessness or what civilian lawyers sometimes call dolus eventualis. Now for present purposes I am going to avoid the difficult controversy of whether dolus eventualis is equivalent to recklessness or a higher mental state (residing somewhere above recklessness but well below knowledge), and for the purposes of this discussion simply assume that dolus eventualis and recklessness are similar mental states dealing with risk-taking behavior.

Now here is the key point. In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

The correct result, it seems to me, is to explicitly codify a new war crime of recklessly attacking civilians, and the codification of such a crime should use the word “recklessly” rather than use the word “intentionally.” The idea would be to create a duty on the part of attacking forces and then penalize them for failing to live up to it. (Of course, the scope and content of that duty would then have to be elucidated through case law adjudication.) And the existence of a separate war crime would help signal the moral difference between intentionally killing civilians and recklessly killing them.

If such a hypothetical prosecution were to take place, is there sufficient evidence that the attacking force was reckless in the Kunduz hospital case? Unfortunately yes. Among the factual issues are:

1. The targeting system of the AC-130 gunship was not operating correctly because the gunship had to take evasive maneuvers due to ground fire.

2. The targeting system therefore identified the target as an empty field, which forced the gunship’s crew to locate the correct target visually.

3. Using visual confirmation, the crew located the wrong building—the hospital—instead of the actual building where the insurgents were located.

4. Apparently the crew of the gunship either did not have a list of no-fire targets on board or failed to check the hospital coordinates against the list.

5. Commanders at HQ failed to check the coordinates of the hospital target with the coordinates on their no-fire target list. Had they done so, they would have realized that the gunship was about to engage a no-fire target.

6. After the attack began, hospital workers and MSF officials began frantically calling and texting the U.S. military to stop the attack, but there was a substantial delay before the attack was finally halted.

7. According to the Times report, at least one commander was hesitant to stop the attack when they did not have “situational awareness” (SA) on the ground. Apparently he was concerned that friendly ground forces might remain in danger even as they called off the attack. Of course, the opposite turned out to be true: because they lacked SA, they continued to attack the wrong target without a firm understanding of who or what they were really attacking. Obviously it was a mistake for them to have attacked the target in the first place given that they had no SA.

Does all of this add up to a crime of recklessness? I don’t know. That would be for the fact-finder to decide, but a prosecutor could certainly make out a prima facie case that targeting “best practices” were not followed in this case, leading to the identification of the wrong target, and the loss of 42 innocent lives. But I don’t think this is a Rome Statute case. There may be sound moral reasons to create a new war crime provision for accidents of this type, but I don’t think this conduct falls under the existing law as it stands now.

One more time all together: Obama wants to close Gitmo

by Jens David Ohlin

Just a minute ago, President Obama announced yet again his intention and desire to close the detention facility at Guantanamo Bay. There are no particular surprises here. From what I heard listening to his comments, the plan is merely a renewed push to get Congress to cooperate on closing the prison. Specifically, Obama suggested that the detainees who cannot be released should be transferred to a domestic facility, though he declined to specify which one.

Obama made several points in defense of this plan. He conceded that some members of the public are scared about the possibility of detaining terrorists on US soil, though he noted that we already do that because several terrorists convicted in Article III courts are already housed in federal prisons. Moreover, the federal government has housed them in the US without incident, which demonstrates, according to Obama, that domestic detention is safe.

Furthermore, Obama also tried appealing to fiscal conservatives, noting that the transfers would save the government between $65 milliion to $85 million per year. Over a span of 20 years, that adds up to a $1.7 billion savings. So domestic detention is not only safe, it’s cheaper too.

Obama also announced that although military commissions would remain an option for detainees who are captured on the battlefield in active theaters, for all others, Article III courts are the preferred option for terrorism prosecutions.

There was little discussion of how to clear the political log jam that remains over the fate of Guantanamo, though the President said that he was “clear-eyed” about the challenges of achieving the result he wanted: “The politics of this are tough,” he said, but “this plan deserves a fair hearing.” He noted that even George W. Bush wanted to close the prison.

Of course, one solution, which he did not discuss, would be the use of an executive order to close the Guantanamo facility. I’m very curious to hear readers’ thoughts regarding this possibility. One, I’m interested in predictions about whether he might take such a drastic step in the last months of his presidency. Second, I’m interested in whether it would provoke a miniature constitutional crisis, with Obama using his executive power to close the facility but Congress using its spending power to prevent detainee transfers to domestic soil. What result then?

UPDATE: Transcript of the Background Press Call is here.

Eichmann Called Himself an Instrument

by Jens David Ohlin

The New York Times reported yesterday that Adolf Eichmann apparently wrote, by hand, an 11th-hour request to the Israeli President for a pardon of his conviction for crimes against humanity (or commutation of his death sentence). The request was denied and Eichmann was executed a few days later–the only execution ever carried out by the Israeli criminal justice system. The letter had been filed in archives and was only recently rediscovered as papers were being prepared for digitization.

Eichmann’s arguments are disturbing. Here is an excerpt:

There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders… I was not a responsible leader, and as such do not feel myself guilty.

What is striking about the letter, in addition to its obvious obliviousness to his own moral responsibility, is the invocation of the language of “instrumentalities” in the argument. The notion of an “instrument”–a human instrument, analogous to a weapon or other physical object–was incredibly important for Claus Roxin, the German criminal law theorist who used the Eichmann case as an inspiration for the development of his theory of indirect perpetration, called Organisationsherrschaft, which translated means roughly “indirect perpetration through an organized apparatus of power.”

For Roxin, Eichmann was a classic case of someone who used others as instruments to perpetrate his crimes. But instead of simply using other individuals, Eichmann used an organization–which was characterized by the fungibility of its members and the automaticity of its execution of orders received from above. In that sense, the organization became the “through element” by which the order was carried out and the criminal plan brought to fruition by Eichmann.

The ironic thing is that in Eichmann’s letter, he claims that he was the mere instrument–presumably an instrument in the hands of Hitler himself. Obviously the Israeli Court disagreed and viewed Eichmann as something more than a mere instrument–they concluded that he was an active participant and indeed architect of the specifics of the so-called “Final Solution,” the extermination of Jews in Germany, Europe, and beyond.

Although Eichmann’s factual argument is implausible and self-serving (and inconsistent with the facts), it does raise, in the abstract, a complex legal question: how to treat the responsibility of mid-level or upper-level perpetrators who control subordinates below them but who are arguably not at the top of the chain of command. Should Organisationsherrschaft (and the Control Theory more broadly) apply to them?  How should we model individual criminal responsibility in this context?

Incidentally, this issue is discussed by Kai Ambos in Volume 1 of his treatise, pages 115-116, especially with regard to a case in Argentina that declined to apply Organisationsherrschaft for similar reasons (the court concluded that it could only be applied to the top-level Junta, and not subordinate officers below the top level). I’m curious what others think of this argument.

Specific Direction Again

by Jens David Ohlin

As already noted by others (including Kevin Heller, Marko Milanovic, and Dov Jacobs), the ICTY Appeals Chamber has overturned the acquittals of Jovica Stanisic and Franko Simatovic and remanded their case back to the Trial Chamber for the holding of a second trial. I want to discuss two issues pertaining to this decision.

The first pertains to the Specific Direction requirement for remote aiding and abetting of an organization that commits international crimes (yes, Specific Direction, again). There has been a long-standing dispute within the ICTY over aiding and abetting liability and whether Specific Direction is required by customary international law. The Perisic case said it was required, but then a differently composed Appeals Chamber disagreed in Sainovic. Now, finally, the Appeals Chamber has stated once again that the Specific Direction requirement is illusory (and hence the do-over for the Stanisic and Simatovic trial).

The unfortunate thing about the Appeals Chamber decision from Tuesday is how little we get in terms of actual legal rationale for the decision. Although the decision is almost 100 pages, only a few pages deal with specific direction. Of those, most are a summary of the positions of the parties in the case regarding specific direction. As for the court’s analysis, it is limited to one paragraph. And the argument in the paragraph itself does not touch the substance of the legal issue at all, and merely states that a previous appeals chamber had rejected the specific direction requirement, so the requirement does not apply. There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings, and even more distressingly no discussion of the underlying merits of the specific direction question, i.e. actual reasons why specific direction is not a part of the customary international law of aiding and abetting. All of this is left to the dissenting opinions. The court spends almost as much time and space devoted to the pressing legal issue of whether the defendant’s arguments should be rejected because the prosecution complained that the defendants failed to submit photocopies of the law review articles that they cited in their brief.

These facts highlight something that Heller, Milanovic, and Jacobs have already noted: The result was preordained from the beginning, given the composition of the Appeals Chamber and the number of judges who had previously (in the minority) opined that specific direction was not a formal requirement of customary international law. Incidentally, my complaint here is more about the lack of substantive engagement with the underlying issue, and not the result. Although I continue to think about the issue, I have been somewhat skeptical of specific direction for two reasons. First, the requirement seems to me a heightened mens rea standard akin to purpose, and not an actus reus requirement. Second, even if it is a heightened mens rea standard, it seems to me to be a house of cards built upon a strained reading of three words that were originally drafted, as dicta, in the original Tadic opinion, and which do not support the specific direction requirement. That being said, I do concede that there is evidence on both sides of the knowledge vs. purpose debate for aiding and betting under international law.

The second issue is that this case highlights, once again, a substantial defect in the ICTY’s procedural framework: the lack of an en banc hearing mechanism for the Appeals Chamber. Either all judges of the Appeals Chamber should hear all appeals (rather than use panels), or if panels are used, there should be an opportunity, in rare circumstances, to petition the Appeals Chamber for a second appeal to the entire Appeals Chamber sitting en banc. This would ensure that the decisions of the case are not based on the vagaries of the panel’s composition, which seems both arbitrary and unstable.  Future ad hoc tribunals (if there are any), should avoid this structural mechanism.

One final point: Stanisic and Simatovic attended the hearing in person, and therefore were detained and placed in custody in The Hague. I find this surprising (their voluntary appearance, not their detention). Anyone have any information on this decision? If they had stayed in Serbia, would they have voluntarily complied with the new arrest order or would they have run?  Would the government in Serbia have been willing and/or able to arrest them quickly if necessary?  Of course, these are all hypothetical and somewhat moot questions at this point.

The UK Government’s Position on Unwilling & Unable

by Jens David Ohlin

Happy Thanksgiving.  As those of us in the United States celebrate our Thanksgiving holiday, it is of course imperative to remember that many people outside our country are facing serious problems and perilous circumstances.

In response to the terror attacks in Paris (and in Mali), the government of UK Prime Minister David Cameron has once again called on British lawmakers to authorize the use of military force in Syria. Cameron released a document that not only articulates the strategic necessity for military action against ISIS, but also outlines the Cameron administration’s legal position regarding the legality of the proposed strikes under international law. Unsurprisingly, the argument relies on the fact that the Syria government is unwilling or unable to stop the ISIS threat.

The following excerpt is taken from a longer document released by Cameron and sent to the British Parliament’s Foreign Affairs Committee. Here is the critical section dealing with international law:

There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global and unprecedented threat to international peace and security”, and called upon Member States to take “all necessary measures … to prevent and suppress terrorist acts committed specifically by ISIL… and to eradicate the safe haven they have established over significant parts of Iraq and Syria.” There is a clear legal basis for military action against ISIL in Syria. The legality of UK strikes against ISIL in Syria is founded on the right of self-defence as it is recognised in Article 51 of the UN Charter. The right to self-defence may be exercised individually where it is necessary to the UK’s own defence, and collectively in the defence of our friends and allies. This reflects the multi-faceted and evolving threat that ISIL poses, and the response that is required to bring that threat to an effective end.

Collective Self Defence of Iraq

On 20 September 2014 the Government of Iraq wrote to the President of the UN Security Council seeking international assistance to strike ISIL sites and military strongholds, in order to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders. The main basis of the Global Coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. The UK is already supporting the Coalition’s efforts to degrade ISIL in Syria as a necessary aspect of effectively bringing an end to ISIL’s armed attack on Iraq. On 21 October 2014, the Defence Secretary announced to Parliament that he was authorising flights of manned and unmanned surveillance aircraft over Syria to gather intelligence against ISIL. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria and their ongoing attack on Iraq and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq.

In light of these considerations and the scale of the threat posed by ISIL, military action that is necessary and proportionate to bring an end to ISIL’s attack on Iraq is justified in accordance with the right of collective self-defence that is preserved in Article 51 of the UN Charter. The Coalition has relied on this legal basis for military action in Syria. Numerous States, including the USA, Australia, Canada and France have written to the UN Security Council explaining that they are taking action on the basis of the right of collective self-­defence. In accordance with the requirements of Article 51 of the UN Charter, the UK notified the UN Security Council that it was taking military action as part of the Coalition’s efforts in the collective self-defence of Iraq by a letter of 25 November 2014. The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today. The collective self-defence of Iraq provides a clear legal basis for the UK to increase its contribution to the Coalition’s efforts against ISIL in Syria by taking direct military action itself, provided such activity meets the ongoing requirements of necessity and proportionality.

ISIL’s threat to the UK and its attack on our Allies and partners

The threat from ISIL continues to evolve and now goes far beyond Iraq and Syria, as is all too clear from the external attack planning disrupted by the precision UK strike of 21 August (as I reported to the House on 7 September) and the tragic events of 13 November in Paris. For several months now, UK security agencies have been monitoring the development of ISIL’s external attack planning capacity, which seeks to target both the UK and our allies and partners around the world. Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks. It is clear that ISIL’s campaign against the UK and our allies has reached the level of an “armed attack” such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL. As well as the collective self-defence of Iraq, there is therefore an additional legal basis to take action in our own self-defence and that of other allies and partners as well, where they request our assistance. The use of force in self-defence is of course limited to what is necessary and proportionate and we have made clear that we will act at all times in accordance with the law.

More Memos Anyone?

by Jens David Ohlin

Today the New York Times reported on the existence of four secret memos covering the various aspects of the U.S. Navy Seals raid that killed Osama Bin Laden.  It would be great to see the memos, but I wouldn’t hold your breath. They aren’t likely to be released in the very near future, though I think each of them would, in very significant ways, increase our understanding of how the United States executive branch understands crucial questions of international law.

For now, until the memos arrive, here are a few brief comments about the underlying issues contained in them. First, let’s discuss the duty to capture. I think the memo (at least from its description in the New York Times) gets this exactly right. If Bin Laden effectively communicated his intention to surrender, the attacking forces are required to respect that decision and take him into custody instead of killing him. However, there is no affirmative obligation under IHL to offer targets the opportunity to surrender before attacking them. In other words, one does not need to ask a target if they wish to surrender before killing them. Based on this analysis, it is entirely legal under IHL for a military operation to proceed with the intention to kill the targets rather than to capture them (although query whether Ryan Goodman, presently at DoD, might disagree with this conclusion).

Another memo dealt extensively with the putative violation of Pakistan’s sovereignty caused by the Navy Seals raid. According to the Times article, the focus of the memo was the Unwilling or Unable standard, which has been extensively vetted on this blog in the past (including some intense back-and-forth between Kevin Heller and Marty Lederman). I wanted to make two quick points about the nature of this debate. First, I think the discourse is focused far too much on customary international law, which to my mind is of limited–or even no–relevance to the issue. (In this respect, various statements regarding self-defense from the ICJ, including in Nicaragua, have contributed to this confusion.) In reality, the law of self-defense is a question of treaty interpretation, governed by article 51, which recognizes and preserves, but strictly speaking does not create, an inherent right under international law. Indeed, even if customary international law were to purport to eliminate the right of self-defense, the right would still endure as legally effective, in part because it is an inherent right that cannot be taken away–a point recognized by the text of article 51 as central to the UN Charter regime. Consequently, the real test of the unwilling or unable standard is whether it is consistent with both the natural right of self-defense and the text of article 51–something that the current debate has shown insufficient attention to. And, dare I say it, the text of article 51 suggests that the provision was designed to carve out, as an exception from the general prohibition on the use of force, the defensive rights that existed pre-charter going back as far as natural law. That should be the focus of the analysis.

OK, now back to watching the GOP debate.

Book Symposium: Cyber War and the Question of Causation

by Jens David Ohlin

Thanks to Kevin Govern and Duncan Hollis for providing the two previous posts (here and here) in this book symposium on Cyber War: Law and Ethics for Virtual Conflicts.

In my post, I want to explore the difficulties arising from causal investigations in cyber attacks.

Everyone knows that the increasing threat of cyber attacks will place immense pressure on the operational capacities for various intelligence and defense agencies. Speak with anyone in military operations (from several countries), and their lists of security concerns are remarkably similar: Russia, ISIS, and cyber (in no particular order). What is more controversial is whether the current legal regime regarding jus ad bellum and jus in bello is sufficient to adequately regulate cyber-attacks and cyberwar, or whether new legal norms should be developed to specifically address these issues.

My own view, which is the focus of my chapter on Cyber-Causation, is that there is insufficient clarity right now regarding the required causal connection between a cyber attack and its kinetic consequences, especially with regard to what counts as an armed attack for purposes of triggering the right to self-defense under Article 51, and what counts as an attack for purposes of jus in bello. I argue that the lacuna is not terribly surprising since the law of war has generally avoided issues of causation because, unlike tort and criminal law, issues of causation are usually (with some notable exceptions) fairly uncontroversial in wartime. Cyber might change that.

Let me explain in greater depth why I think that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of the law of war. If you drop a bomb on a village, the results are fairly obvious. The one area (or one of the few) where causation is controversial is dual-use infrastructure targets that have some relationship to both civilian and military operations. Under the law of war, a target is only a permissible military target if, among other things, its destruction will make an effective contribution to the military campaign.

According to Article 52(2) of Additional Protocol I:

attacks shall be limited strictly to military objectives. Insofar as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

The problem is that destroying almost any civilian target will create some military advantage, if only because it might demoralize the civilian population and spur them to pressure their civilian leaders to sue for peace. But that is clearly overbroad. The difference between permissible and impermissible attacks has to do, in part, with the nature of the causal connection between the attack and the military advantage that it confers. Something about the causal relationship between the terror-killing of non-combatants and the resulting military advantage is impermissible and dangerous. So that is one area where IHL needs a good account of causation. But I think this is a rare case.

I believe that cyber-attack scenarios will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I place less emphasis on which account of causation is abstractly correct and instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). The Tallinn Manual was an excellent start to this process, but I also encourage scholars of causation in other fields to join the conversation.

One reason why this question is so difficult to answer is that traditional theories of causation cannot be reflexively and uncritically grafted into the law of war. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. George Fletcher (in Rethinking Criminal Law) famously distinguished between the pattern of subjective criminality and the pattern of manifest criminality. While the former is appropriate for the criminal law’s extensive fact-finding system, IHL is burdened by the lack of fact-finding resources, and must necessarily rely on the pattern of manifest criminality. Of course, there are international tribunals to adjudicate violations of IHL that constitute war crimes, but let’s remember: (i) only the worst violations of IHL will be adjudicated at an international tribunal; and more importantly (ii) tribunal adjudications are always ex post, never contemporaneous decisions within the moment. The law of war needs a theory of causation that allows all participants to clearly and quickly evaluate the legality of the conduct without needing a courtroom and a fact-finder to make complex factual (and even normative) assessments that may take months to finalize.

Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.

If these issues interest you, feel free to check out the rest of the book here.

The Power of the Security Council

by Jens David Ohlin

I want to thank Alexandre Skander Galand for his interesting post last week on the continuing controversy over President al-Bashir’s non-arrest during his recent visit to South Africa. The post reignited a long-standing debate in the comments section. My own views are too long for posting in the comments section.

I write now to expand a bit on my previous arguments regarding the role of the Security Council in imposing a binding obligation on Sudan (and other states) to cooperate with the ICC and execute its arrest warrant. If the obligation to Sudan vitiated its putative immunity, then South Africa had no basis to refuse to comply with the ICC arrest warrant, especially since it is a party to the Rome Statute.

First, before I get to that issue, I want to briefly mention the other argument for imposing a duty on Sudan to cooperate, which is a jus cogens obligation stemming from the investigate/prosecute-or-extradite norm that applies in genocide cases. Goran Sluiter wrote an important article on this subject, which was published in the Journal of International Criminal Justice in 2010. This is a different argument (albeit a good one), and it is best to keep them separate.

Now back to the issue of the Security Council. Some commentators (including Asad Kiyani here) doubt that the Security Council has the authority under Chapter VII to impose a binding obligation on Sudan to cooperate to such an extent that it requires waiving their rights under head of state or diplomatic immunity. I understand the claim. But I think it is clear that the Security Council has this authority and that implicitly other scholars should be committed to this conclusion as well, since this power is far less grave than the other powers that the Security Council clearly has. Indeed, the power to abrogate Sudan’s head of state immunity is downright trivial compared to the Security Council’s other powers.

One should recall that the Security Council has the authority, under the UN Charter, to authorize military action against the sovereignty of a state. This authority is taken pursuant to the Security Council’s power under Chapter VII to determine the existence of a threat to, or breach of, international peace and security, and to make binding resolutions that include, among other possible remedies, the authorization of military measures taken against an offending state in order to repair the breach to international peace and security.

This is an awesome power. It effectively allows the Security Council to bless a military incursion that might otherwise violate the UN Charter prohibition on the use of military force to solve international disputes–a prohibition codified in Article 2(4) of the Charter (and also arguably a jus cogens norm). However, if the military action is supported by a binding resolution of the Security Council, the military action is not illegal–it is a lawful enforcement action undertaken under the auspices of Chapter VII of the UN Charter.

This power of the Security Council is explicitly outlined in the UN Charter. It is rarely invoked, in part because military remedies are extremely serious, but also because the veto power among the permanent members limits the number of binding resolutions that the council will pass. However, few scholars (if any), deny that the Security Council has the power to: “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

So I find it strange that some scholars have trouble with the idea that the Security Council has the authority to abrogate the sovereign or diplomatic immunity of state officials in cases such as the Darfur situation. Indeed, the Security Council had the authority–which it declined to exercise–to declare the Darfur crisis a threat to international peace and security (in part because it caused regional instability and included massive violations of IHL and human rights, possibly including crimes against humanity and perhaps even genocide) and authorize a collective military intervention to breach Sudan’s sovereignty, occupy the entire country, and remove Bashir from power. But for some reason, the Council does not have the power to do the smallest thing imaginable: refer the case to the ICC and implicitly remove any immunity arrangements that conflict with that referral? I find that hard to believe. In this case, the greater includes the lesser.

Of course, there is a separate issue regarding whether the Security Council actually abrogated that immunity when it directed states to comply with the ICC in the Darfur investigation. That is a separate point. I think they did so, and there is no other way of interpreting the relevant resolutions. But that’s not the point I am defending here. I am simply asserting that if they displaced Sudan’s diplomatic and sovereign immunity, they certainly had the authority under international law to do so.

Goodbye to Torture at the APA

by Jens David Ohlin

Today, the American Psychological Association formally voted to end their enrollment in national security interrogations. This would seem to finally put an end to the organization’s involvement in post-9/11 torture against security detainees.

The vote comes on the heels of the Hoffman Report, which was prepared by attorney David Hoffman of Sidley Austin LLP.  Hoffman was hired by the APA to perform an internal investigation of the organization’s role in post-9/11 security interrogations that involved torture. The results of the report were damning. It was already common knowledge that psychologists were deeply involved in overseeing the interrogations that used torture, and that a few psychologists received millions of dollars from the CIA for their work. But the Hoffman Report conclusively established that key figures within the APA worked closely with administration officials (indeed colluded with them) to ensure that the organization’s ethical guidelines continued to permit the involvement of psychologists.

After the Report’s release, it was a little bit unclear what action the organization would take. Since much of the APA’s leadership was involved in the mess, reformers within the organization were seeking the removal or resignation of several officers. Some of those resignations happened in July.

Today comes the second part of the reform: a decision by the organization to ban its members from participation in all national security interrogations, whether or not they involve torture. Here is an excerpt from the resolution which passed overwhelmingly:

BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,”4 psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations5 for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation6. This prohibition does not apply to domestic law enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.

Fn4 Ethical Principles of Psychologists and Code of Conduct. (2002, as amended in 2010), American Psychologist, 57, 12, p. 3.

Fn5 For the purposes of this policy statement, “national security interrogations” refer to the interrogation of any detainee in the custody of any agency or subsidiary agency that reports to the Director of National Intelligence, the Secretary of Defense, the Director of Homeland Security, or the National Security Council, including joint elements such as the High-Value Detainee Interrogation Group. This also includes any operations by those agencies with any allied governments or non-state actors, including private contractors. This does not include those detainees held under domestic law enforcement where Miranda Rights and the U.S. Constitution apply.

Fn6 Psychologists may provide consultation with regard to policy pertaining to information gathering methods which are humane so long as they do not violate the prohibitions of this Resolution and are not related to any specific national security interrogation or detention conditions.

Interestingly, the ban does not apply to domestic law enforcement interrogations.

Reading and Learning from Mike Lewis

by Jens David Ohlin

I met Mike Lewis during my first year of law teaching at Cornell Law School. Mike was scheduled to give a lecture at the law school about torture and I was invited to give a commentary on his presentation. Mike had pre-circulated the paper that the presentation was based on. I disagreed with his thesis and pressed him sharply on its details during the event. His thesis had the virtue of proposing a very workable standard for defining torture, but I felt it yielded counter-intuitive results for particular reasons that I articulated during the event. Afterwards, I was worried that I might have offended Mike, but it was not the case. Immediately after he got home, he wrote me a lovely note saying how much he appreciated our substantive exchange and was grateful that I taken the time and energy to respond to his scholarship. He was a true scholar and intellectual.

In the ensuing five years, I spent much time reading and learning from Mike’s other articles on IHL. This came at a crucial time for me as I was broadening my research agenda from exclusively ICL to include a wider range of IHL and law of war issues as well. I became heavily involved in debates about drones, targeted killings, targeting in general, and the relationship between IHL and human rights law. In all of these areas, I was heavily influenced by Mike’s explanations and positions that he articulated in his many law review articles. And I should hasten to add that on most of these crucial questions I was in agreement with Mike. Although I disagree with the Obama Administration’s legal positions on a few issues (definition of imminence, over-reliance on covert action and its consequences, use of the vague and indeterminate “associated forces” moniker, etc.), the general tenor of my scholarship has been to recognize that the deep architecture of IHL continues to be fundamentally Lieberian. I came to this view of IHL by reading a great many sources, but I would rank Mike’s articles near the top of that list. Simply put, I would not hold the views that I hold today if I had not been so richly educated by reading Mike’s work.

I spent some time with Mike at the ethics and law of war conference that Kevin Heller mentions in his remembrance. Mike was full of plans and we discussed the possibility of collaborating on future projects on the subject of the privilege of combatancy–a common interest for both of us. We hosted him at Cornell University last year as part of our university-wide Lund Critical debates series, where he debated Mary Ellen O’Connell on the use of drones. The video of the event can be found here; Mike’s presentation to the packed auditorium was both insightful and extremely clear. He had the ability to translate complex legal material to a wide audience, and Mary Ellen’s thoughtful critique on U.S. policies made for a lively debate between the two of them.

As I set about working on a new collected volume on remote warfare, I emailed him in October to commission a chapter from him; he enthusiastically responded in the affirmative. When just a few days ago I sent him a contributor agreement for him to sign on June 5, he informed me of his illness and said he could not definitively commit to the project anymore but was hopeful that he might still produce a chapter for it. Though he was still optimistic and making important plans for the future, I understood the nature of the diagnosis and prognosis because he gave me the name of his illness, but I labored under the illusion that we had more time. I was shocked when I learned that the end had come so quickly; I was unprepared for the news even though in the back of my mind I inferred the seriousness of the situation. I am devastated that we have been denied his voice for what should have been another 50 years. It highlights for me the fragility of life and our time on this earth and the ultimate unfairness by which some people are denied the privilege of a long life. But I take some comfort in knowing that he loved being a law professor and that we will be reading his work in the years and decades to come.