Author Archive for
Kenneth Anderson

The UN Haiti Cholera Dispute – Public or Private Law Claim Under Section 29?

by Kenneth Anderson

Kristen asks in her post below whether anyone has a view on whether the UN’s assertion that the cholera epidemic claims in Haiti constitute a public law claim, and hence not within the purview of Section 29 of the UN Convention on Privileges and Immunities is supported by  law or past practice?  I don’t have a view, or any genuinely legal materials to raise, but curiously I encountered the issue in passing, in practice as general counsel for an NGO during the Bosnian war in the 1990s.  Circumstances were unique, and for various reasons my client organization decided not to pursue it as a matter of research or dispute, but Section 29 specifically came up as a comment from UN officials I was negotiating with at the time.

At the time of the Dayton Accords, the agreement and all the parties – not just signers of the Accords but states, the UN, various other international bodies – agreed there needed to be a TV and radio network reestablished across Bosnia that would broadcast in all languages, provide neutral news reporting, etc., in the run-up to the elections.  But broadcast towers and all that had been destroyed, so the physical infrastructure needed to be put in place very quickly.  The states involved, and some organs of the UN – I’m sure I’m not remembering the details correctly – agreed in principle to fund this, but expressed concern that they could not get the funds flowing quickly enough to meet the deadlines.  So my organization was invited to consider whether it would front the funds, pay for the work, hire the consultants and contractors, and see that the work was completed in time. (more…)

Olive Oil Update – Prices on the Rise

by Kenneth Anderson

I posted a few weeks ago about the scandalous situation of adulterated Extra Virgin Olive Oil (EVOO) exported from Italy, Greece, and Spain.  Here is an update on the international olive oil market from Ed Dolan of EconoMonitor.  He reports that cold weather in Spain, followed by drought, has shrunk the Spanish harvest:

There is little doubt about what is happening on the supply side of the market: The weather in Spain, the world’s largest producer, was unusually bad last year. In the spring, an unexpected frost damaged the trees just as they were blossoming. Summer brought a prolonged drought. By December, which should be the height of the 2012/13 harvest, the Spanish crop was coming in at just 44 percent of the year before.

The harvest has been better elsewhere, but … Spain so dominates the world market that no one else can really make up the loss. Tunisia is trying. The fifth largest producer and fourth largest exporter, its production is expected to rise by 27 percent in the 2012-13 season. California will also have a good year. Growers there hope to reach 3 percent of world output this year, up from the 1 percent or less reported by the FAO for 2011. But none of that is going to go far in replacing the hundreds of thousands of tons of lost Spanish production.

Dolan also notes that demand over the long run is sharply on the rise.  The US consumer market is embracing EVOO as a healthy oil, and Brazil and China are seeing strong increases in demand over time.  Long term, demand is healthy and rising.  (Lest anyone doubt this, Dolan reports that Wrangler jeans has introduced a line of “olive-oil infused jeans” to moisturize the wearer’s legs while wearing.)  Production is up in other places – California, Tunisia and Morocco, South Africa, Chile, Australia, and New Zealand – all of which produce some very fine EVOO.  However, Spain so dominates production today that for the short term, expect price hikes for all olive oil, as evidenced in this olive oil futures chart (click for larger version):

P130204-2

One thing Dolan does not address is the effect of these supply and demand factors on the nasty little secret of this burgeoning market – adulteration of EVOO, as discussed in my earlier post.  We can make some guesses, however.  One is that the constriction of supply is going to push more adulteration, whether with lesser grades of olive oil or simply other oils such as cottonseed. If that does not become widely known then it might actually entrench adulteration even more as the norm. (If that’s possible, given that some officials in the EU suggest that 50% of the EVOO-labelled oil is actually adulterated with either lesser grades or non-olive oil.  The chances that an “Italian” oil you buy even at Whole Foods or Trader Joe’s in the US is pure EVOO is likely not better than 50%, and any any case, the export rules allow Italian packers, for example, to import oil from Spain or Greece, or outside the EU, such as Morocco, package it with a pretty Tuscan villa on the label, and sell it as Italian, according to Tom Mueller’s book, as I discussed in my earlier post. The losers in this game are the artisanal EVOO producers in Italy and Spain, who do produce the pure and much more expensive stuff, but can’t get clear identification and differentiation of their products in the export market.)

Many consumers are not likely to care, interestingly – at least, not if the consequence of enforcing the purity standard meant that the price of real EVOO went up a lot, as it would have to absent adulteration.  Those who do care are tending to shift to trusted sources, which often means shortening the supply chain. In my case, that means shifting to California EVOOs (as a Californian who has been in exile his adult life, I have a sentimental interest as well) – there are in fact sources I trust in Italy and Spain. Australia and New Zealand have much more trustworthy systems of labeling EVOO and certifying it than Europe these days, I sorrow to say. And all these places produce many superb EVOOs.  But one has to be prepared to pay for it, both because of the spike in prices due to the poor Spanish harvest – but also because if you want the real stuff, it’s going to cost you more.

Eyal Benvenisti and Amichai Cohen on ‘War as Governance’

by Kenneth Anderson

Perhaps some OJ readers caught this abstract from the SSRN public international law postings this week, but if you didn’t, I want to commend it to you:  Eyal Benvenisti and Amichai Cohen, “War as Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective.” I have read it once, and plan to re-read it; I’ve long followed both authors’ work with considerable respect (and have been pleased to have Amichai as a friend ever since he visited at my law school years ago).  I don’t know yet whether I agree fundamentally or not; I want to consider this carefully.  But I thought it was one of the most interesting methodological approaches to the laws of war that I’ve read in quite a long time and believe it should get substantial attention (though I admit I teach law and economics, as well as the law of agent and principal in corporations classes, so I might have some prior methodological biases here).  SSRN abstract:

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of “the state,” and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intra-state conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations’ interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.

One reason I don’t want to offer a view yet is that I am still completing the fine new book applying standard rational choice theory to international law, Eric Posner and Alan Sykes, Economic Foundations of International Law (Harvard UP 2012); its account has bearing on Benvenisti and Cohen’s quite interesting take.  Posner and Sykes is a very straightforward, descriptive account of how rational choice applied to public international law would look, by comparison to other methodological approaches.  Benvenisti and Cohen are not engaged in rational choice theory as such, however; at first pass, it seems to me that the work done in their account is much more dependent upon the political and social theory attached to looking inside the state to see its intra-state arguments over war and its conduct.  But now I’m tempting myself to say more than I’m prepared to say at this point.  Here, by the way, is Jack Goldsmith’s Lawfare comment on Posner and Sykes:

Eric Posner and Alan Sykes have a new book entitled Economic Foundations of International LawThe book does what its title suggests: gives a comprehensive rational choice account of public international law.  It distinguishes itself from other books in this genre in (among other things) its scope.  For it covers all of the major elements of public international law, from general issues (such as treaties, custom, sovereignty, and state responsibility) to various fields (jus in bello and jus ad bellum, human rights, environmental law, law of the sea, international trade and investment, and more). Economic Foundations does not engage theoretical debate about the virtues and vices of rational choice accounts of international law as opposed to other accounts.  It simply sets out basic rational choice principles and applies them to the various fields and topics.  The book is clear, insightful, and accessible, and I highly recommend it.

Law and Robotics Conference Seeking Paper Proposals, and HRW’s Tom Malinowski Releases Video That I Will Always Treasure

by Kenneth Anderson

Ordinarily I would leave events posting to our regular postings, but I fell behind and wanted to flag the upcoming Friday deadline for paper proposals for the “Law and Robotics Conference.” It will take place on April 8-9, 2013, at Stanford Law School (the conference follows on the highly successful law and robotics conference that took place at University of Miami last year).  The call for papers says that the conference is open to papers in all fields of law, and specifically mentions international and comparative law, so I thought it would be of interest to OJ readers.  Matthew Waxman and I plan to submit, for example, a proposal on comparing self-driving cars and autonomous weapon systems (I’ve been exploring some of these ideas, brainstorming for the paper, over at Volokh). I am 100% certain the conference will be terrific with outstanding papers and great discussions.  Here is the link if you’re interested.

Meanwhile, over at Lawfare, Human Rights Watch’s Tom Malinowski, Benjamin Wittes, Matthew Waxman, and I have been debating the recent HRW report calling for a ban on “Killer Robots.”  Tom’s latest response – though mostly a serious discussion, well worth reading, though I’m afraid it doesn’t finally manage to persuade me - has a video at the end that I will always, always fondly treasure.  It’s great.   (It’s in Hindi, and though I didn’t know Tom knew Hindi, I’m going to trust his subtitles.)

Space Law Update – US Won’t Build Death Star, Also Does Not Support Blowing Up Planets

by Kenneth Anderson

Opinio Juris is pleased to note official White House reaction to the petition (via the We the People White House site, an Obama administration initiative promising an official response to citizen petitions garnering 25,000 signatures within 30 days of posting) calling upon the Obama administration to “secure resources and funding, and begin construction of a Death Star by 2016.”

As reported by Entertainment Weekly  (the only truly canonical outlets for this kind of news would have to be EW or Wired, Hollywood or Silicon Valley), here is the official administration response, from Paul Shawcross, Chief of the Science and Space Branch of OMB (we must assume this went through the authoritative interagency clearance process and perhaps one day might even contribute to the opinio juris of the United States for purposes of interstellar law of war on the destruction of planets):

“The Administration shares your desire for job creation and a strong national defense,” begins Shawcross, “but a Death Star isn’t on the horizon.” He cites a Lehigh University study that calculated that a Death Star would cost a deficit-exploding $852,000,000,000,000,000 (that’s $852 quadrillion), notes that “the Administration does not support blowing up planets,” and rightly points out that it would be foolhardy to build a space station “with a fundamental flaw that can be exploited by a one-man starship.”

Shawcross then goes on to tout the many space endeavors, both public and private, that are currently underway. (“Even though the United States doesn’t have anything that can do the Kessel Run in less than 12 parsecs, we’ve got two spacecraft leaving the Solar System and we’re building a probe that will fly to the exterior layers of the Sun.”) He concludes by encouraging the diligent soul(s) who created the petition to pursue a career in a science, technology, or math-related field, declaring that anyone who does so embraces the power of the Force: “Remember, the Death Star’s power to destroy a planet, or even a whole star system, is insignificant next to the power of the Force.”

I’ve put the full text of the Obama administration response below the fold (and check out the many interesting links at the White House site, which I haven’t included). It is more substantive than one might have anticipated – it discusses private space flight initiatives, the International Space Station and – naturally! – robots.

Update:  Response from the Air Force General Counsel’s Twitter feed (and I recommend both the Twitter feed (@AirForceGC) and blog:

Still smarting from Death Star decision, but must admit weapons review would have been a bear.

Referring to US legal requirements for a review of the legality of all weapons systems, meeting the terms of Article 36 of 1977 Additional Protocol I. (more…)

Jennifer Daskal in the NYT on Why to Not Close Guantanamo (For Now)

by Kenneth Anderson

Jennifer Daskal (who, I’m delighted to say, has just accepted an offer to join the faculty at my school, Washington College of Law) has an important op-ed in the New York Times today titled, simply, “Don’t Close Guantanamo.”  Many of us know Jen Daskal from her earlier positions in the Obama administration Justice Department and, before that, Human Rights Watch – where these were her issues.  So why not close Guantanamo?  Her core point hinges on the notion of deeming an end to the conflict in a legal sense – the conflict as defined under the AUMF – as highlighted by just-stepped-down Department of Defense General Counsel Jeh Johnson in one of his final speeches:

The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.

In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear.

At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there.

In the meantime, we should keep Guantánamo open.

Framed against the idea that a formal legal end to the conflict might be forthcoming sooner rather than later, Daskal’s arguments for not closing it now seem much less an about-face than the op-ed title might suggest.  The argument is essentially strategic as a matter of timing; far from giving up on closing Guantanamo, it argues that the legal timing matters quite a lot to actually getting there. Given that, I’m not sure there’s that much daylight between her position and Deborah’s, for example, in relation to Deborah’s comments on this same Jeh Johnson speech. But as Ben Wittes notes at Lawfare, this is a brave move by Daskal, given the world from which she comes:

[T]he truth is that the argument is different coming from Jen, a committed human rights advocate, than coming from [Wittes]. The human rights movement has been rigidly and dogmatically—and irrationally—dug in on this matter. And very few people have had the guts to state simply that given the way things have played out, Guantanamo’s closure isn’t the ideal outcome. If the administration could come to where Jen has come here, significant policy opportunities for a different relationship with Congress over detention would open up. It’s great that Jen is willing to say in public that the emperor has no clothes.

The basic debate here will gradually turn (I believe Daskal is right to suggest) and hinge on the meaning of the end of the conflict. At this point, what we have in the way of administration statements on this is Jeh Johnson’s somewhat delphic speech – it has something on which everyone can hang their hat if they want to.  That is not a failing of the speech, to be clear – it had to be hedged in many ways (and Jack Goldsmith has commented on many of them).  It is far from insignificant, as I remarked at Lawfare when the speech was first delivered, to recognize the possibility of an end to the conflict and to begin cautiously to lay out the general conditions for it and what they mean in legal terms.

Still, no one should think they can know today when that point will come and exactly how it will be defined, either as a general proposition or in the factual circumstances as they develop; Johnson was explicit about this.  A lot of what is being said in commentary on this is less analysis, however, than lobbying on exactly this issue.  But consider how wide the gaps are between declaring an end to the conflict in a legal sense, and stating precisely and concretely what that means.  One the one hand, the speech talked about the end of the conflict and the importance of defining its meaning in legal terms.  On the other hand, it recognized with respect to detention that there would be people who might never be tried or released, and it cautiously hinted at legal reasons that might cover this.

Moreover, it was also clear in Johnson’s speech that an end to the conflict, in the US legal view, would not thereby terminate the US’s legal authorities to use force abroad, in targeted killing or other operations. Those legal justifications might shift or be articulated differently in both international and domestic law terms.  But whether in relation to on-going threats that might be put under the AUMF (arising from actors that might or might not be characterized as “affiliated” forces with Al Qaeda), or in relation to brand new kinds of threats, the end of the conflict would not be seen as somehow shutting down the President’s authority to engage in self-defense actions.  Johnson’s speech was enormously important, but mainly it quite deliberately (and correctly) raised questions of law and policy rather than answering them.

In that regard, Daskal’s op-ed, while heretical on the surface, actually laid down a strategic marker to challenge the administration to go ahead and find a way to declare the conflict legally over – and to figure out what it thinks that would mean in legal terms for detainees at Guantanamo. Daskal laid down that marker with a strong inflection that the end of the conflict would be the basis for closing Guantanamo, and would put the necessity of that closure on a far firmer footing, both legally and politically.

Extra Virginity

by Kenneth Anderson

(Plainly I’m not above a risqué title to shamelessly drive web traffic but I’m afraid this post is all about fraud in the international extra virgin olive oil trade.)  I’m an unsophisticated but enthusiastic aficionado of extra virgin olive oils, ever since a sabbatical in Spain years ago. I was aware of Tom Mueller’s 2007 New Yorker article on international trade in adulterated extra virgin olive oils (EVOO), but somehow hadn’t read it, as I figured I knew what it said.  Reading Mueller’s subsequent 2011 book, Extra Virginity: The Sublime and Scandalous World of Olive Oil, which my daughter gave me for Christmas, well, I was horrified.  Well, seriously deflated at least; we’re not talking about war crimes here.  But really irritated, speaking as a consumer who has willingly paid not-inconsiderable amounts for EVOO on the theory that college is overrated.

It’s not that my palate is so very refined, I hasten to add. I’ve yet to discover, for example, the “banana” notes in the latest olive oil sample delivered by Santa, let alone the “artichoke” and “berry,” despite oxygenating it while noisily slurping it with the special technique I learned at one tasting (and which drives my wife from the kitchen).  I’m embarrassed to say that I’m not entirely sure I’d be able to identify a bad or even stale (“fusty”) EVOO. I’m even less sure, now that I’ve understood from Mueller’s book just how much of the normal stuff, and even premium priced stuff – and especially the stuff arriving to market shelves in the United States – is low grade ordinary olive oil (“lampante,” meaning fuel or lamp oil), or other seed oils, deodorized and refined through heat and solvents to the point of being tasteless, with a variable amount of EVOO added for flavor.

If I’m dismayed as a consumer, speaking as a professor of international economic law, I’m both shocked and astonished at the levels of fraud in the international EVOO trade.  I naively assumed that olive oil, given its importance in the EU, would be regulated with nearly as much care as wine.  It turns out that, quite apart from illegal adulteration, EU regulations permit olive oil to be brought to Italy from Spain, Greece, and in many cases both legally and illegally from Morocco or Tunisia, processed and packaged and sold as Italian olive oil.  Italian law on adulteration, far from being concerned about the protection of a national reputation for setting the world-standard, demonstrates all the characteristics of regulatory capture.  Mueller’s outrage is not merely on behalf of defrauded consumers worldwide (including the EU and Italian publics, who are no more knowledgeable about olive oil adulteration than people anywhere else), however, but is particularly directed to the economic pressures that the adulteration puts on the mostly smaller producers who do maintain quality standards, in accordance with law.  They simply can’t compete with products that appear indistinguishable from theirs, but whose costs are a mere fraction. (more…)

In 2013, I Resolve to Post a Lot … But Only About Robots

by Kenneth Anderson

Kidding!  Happy New Year to everyone!  Chris’s post below made me want to add that I have a goal in 2013, which is to post lots more.  2012 was family-intensive, but things are looking good for 2013, and my resolution is to post much more than I have in 2012.  Thanks to others for carrying the ball, and to our new staff, Jessica and An, as well as to Kristen, and to Peggy for carrying so much of the behind-scenes burden of OJ.

I do plan to take Chris’s excellent suggestion and blog in 2013 about robots, technology, and the inter-relationships with international law, international organizations, globalization more broadly.  I think Chris is right to say that we reflexively think about domestic law when it comes to these areas, but there are many issues in international economic law, as well as the economics of globalization more generally.  Here’s a question I plan to explore across all the places I blog in 2013, including OJ – I’m thinking about offering a course in robots and the law, a research seminar, in a year or two.

I have a couple of hesitations, though.  One is substantive – is there really any “there there” to robots and the law, or is it just a hodge podge of different legal categories, bits and pieces from tort law, products liability, IP, some areas of international economic law – tossed together without any real reason to be together except that the professor thought this was cool?  The other hesitation is pedagogical – like many law professors, I’d guess, I’ve got much tougher in thinking about what I teach and how I think it will benefit my students as lawyers in the world.  It’s easy to say that robotics is the new and happening field (it is!), and so “law and robots” must be important, but there are a lot of reasons for thinking that my students should concentrate on the bread and butter issues, and let things like robots get figured out once they have the basic tools in hand.  I’d welcome your thoughts, on both substance and pedagogy – I’m not committed to doing this, and my primary concern is to do what’s most helpful for my students, at a mid-tier school in a tough job market – not just in relation to international or cross border law, but more generally.  What might make a lot of sense for Stanford Law School doesn’t necessarily make sense for WCL.

But there are other areas I want to explore in 2013 at OJ, and although they certainly include national security and such areas, they do run far away from that stuff.  One is economic, financial, and fiscal issues – related to Europe and the Eurozone, for one, but also economics and legal issues in the global economy.  I hope to engage Martin Holterman and Peter Lindseth, among others, in some of those discussions.  There are other areas related to development economics that I’d like to draw into OJ – microfinance in a generic sense, and the increasing number of issues that it raises in development economics and finance, such as remittance flows, micro-intermediation such as Kiva, and so on.

Finally, I plan to start talking about the UN and my book which, if Santa didn’t bring it to you, meant either that you were on the nice list or else you were on the naughty list, depending.  So I hope all of our readers and all of the OJ community have a wonderful New Year, and I look forward to blogging in 2013!  Best wishes in 2013.

Various Congratulations

by Kenneth Anderson

A quick roundup of congratulations to folks in the broad OJ community …

  • To OJ’s good friend Joseph Weiler – whose distinguished record I won’t even try to summarize – named as the new president of the European Union Institute in Florence. (H/T Martin Holterman.)
  • To likewise distinguished and long-time UN diplomat (most recently SG special adviser on responsibility to protect) Edward Luck, who has been named dean of the University of San Diego’s School of Peace Studies (I was out to give a talk at the USD law school last week and was surprised and delighted to see Ed there; what a terrific move by USD).
  • To our very own Kevin Jon Heller (he’s too modest to announce this, but I think it’s good for us to recognize our own folks’ achievements), who, Our Spies Report, has been promoted to Associate Professor and Reader at Melbourne Law School (for American readers, that’s the equivalent of full professor).  Our Spies further Report that the review letters cited his blogging here at OJ, which of course pleases OJ, though anyone who reads Kevin here know that his blogging is deeply informed by his full-on scholarship.

Autonomous Weapon Systems and Regulation – A Brief Bibliography

by Kenneth Anderson

Well, bibliography is too grand for what I’ve done over at Lawfare, which is put up a list of articles and reports, with links and a brief description, of documents currently in the debate over the regulation of autonomous weapon systems.  I will update it periodically – I won’t start adding older documents, but as new things come out I’ll add them.

To recap the state of the discussion, however … coincidentally, I’m sure, Human Rights Watch/Harvard Law School International Human Rights Clinic launched their report on autonomous weapon systems, “Losing Humanity: The Case Against Killer Robots,” the same weekend that the Defense Department issued a DOD Directive, “Autonomy in Weapons Systems.” We’ve talked about the HRW report here at OJ some – it is both a report and a set of recommendations calling for a multilateral treaty that would prohibit the “development, production, and use” of autonomous weapons systems.  To judge by its reception in the international NGO community, it seems to be a call for the landmines ban campaign of the 1990s, redux.  The DOD Directive, for its part, calls for integrated review of weapons systems as they acquire more automated features, as well as other things such as training of DOD personnel, to ensure that humans retain the “appropriate” level and kind of role suitable to the system and its use. The HRW report and the DOD directive are headed in very different directions – this is something of an understatement.

After the HRW report appeared, the Naval War College’s Mike Schmitt produced and posted to SSRN a short response to it, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics.”  Mike frames his critique of the report as an argument very much from LOAC – arguing that IHL does not prohibit autonomous weapons or weapon systems as a category of weapon or (other requirements of law being met) their use as such.  He also walks through the process by which DOD reviews weapons for their legality as to both weapon and use.  By contrast, Matt Waxman’s and my critique at Lawfare, as well as Ben Wittes’ separate critical post, were much more about policy and, especially, questioned the many factual premises of the HRW report.  These run from HRW thinking it can predict the empirical outcomes of technology over a long run of time, to HRW’s remarkably self-confident factual assertions on the superiority of human emotions in controlling targeting and firing of weapons, empathy over fear.

Ultimately, however, Mike, Ben, and Matt and I come to the same general conclusion – the HRW preemptory ban call is not likely to gain very much traction and, in our various separate ways, each of think it ought not to because it’s wrong in principle, and in any case this brief and factually speculative report simply can’t support the kind of sweeping recommendations it finally makes. However, Tom Malinowski has responded on behalf of HRW to Matt and me, and separately to Ben, at Lawfare. Meanwhile, the final published version of Matt Waxman’s and my “Law and Ethics for Robot Soldiers,” of which we had posted a working version with footnotes at SSRN, appeared in the new issue of Policy Review.  Finally, because of arguments over the definitions of autonomy and automation, I included in the bibliography a very useful article appearing in 2013 from William Marra and Sonia McNeil, “Understanding ‘The Loop’: Regulating the Next Generation of War Machines,” 36 Harvard Journal of Law and Public Policy 3 (2013), which also appeared as a working paper in the Lawfare Research Paper Series 1-2012.

That’s quite a flurry of activity.  I’ll also add to the list an article on December 3, 2012 in the Guardian by the prominent artificial intelligence scientist Noel Sharkey, who has been pressing for just such an international ban campaign for years and who has served as something of the intellectual inspiration and adviser behind HRW’s embrace of the whole ban treaty agenda.  I don’t share Professor Sharkey’s views (with some I disagree on principle and with others, such as the factual future of technology, I’m agnostic, but unwilling to give up the possible benefits and certainly not sympathetic to HRW’s ban proposals). But he is the most persuasive voice for the ban campaign (as well a model of grace and good humor in debating this, which is no small thing), and I’m much looking forward to meeting him at a January conference on artificial agents at the University of Virginia.  (Update: I’m only including current stuff, going forward, rather than trying to go backwards and generate a true bibliography.  But you’ll find that the notes to most of these pieces, where they have them, point to a lot of useful background materials legal, moral, policy, strategy, and technology.)

DOD General Counsel Jeh C. Johnson on Conditions for the End of the Conflict

by Kenneth Anderson

Quick note further to Deborah’s post on the “end-game” of the current US counterterrorism regime.  In category of great minds think about the same things, if not precisely alike, the same day Deborah posts, Defense Department General Counsel Jeh C. Johnson gives a speech at the Oxford Union, “The Conflict Against Al Qaeda and its Affiliates: How Will It End?”  Ben Wittes has posted the text of the speech at Lawfare.  Skimming it quickly, I’d flag this in particular (I’ve left out the footnotes):

In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end.”  I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.

At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence. In general, the military’s authority to detain ends with the “cessation of active hostilities.” For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war.

For now, we must continue our efforts to disrupt, dismantle and ensure a lasting defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat to the citizens of the United States, the United Kingdom and other nations. We must disrupt al Qaeda’s terrorist attack planning before it gets anywhere near our homeland or our citizens. We must counter al Qaeda in the places where it seeks to establish safe haven, and prevent it from reconstituting in others.

DOD Directive on “Autonomy in Weapons Systems”

by Kenneth Anderson

At almost the same moment that Human Rights Watch/Harvard Law School Human Rights Clinic released its report, “Losing Humanity: The Case Against Killer Robots,” which called for states to establish a treaty that would prohibit the “development, production, and use” of “fully autonomous weapons,” the Pentagon (under Deputy Defense Secretary Ashton Carter’s signature) issued a DOD Directive, “Autonomy in Weapons Systems.”  THE DOD Directive sets out standards and mandates review of autonomy and automation features of rapidly proliferating of “automating” military systems, as they are developed and evolved, to ensure compliance with the laws of war and, more broadly, to ensure that both design and operational knowledge in the field maintain “appropriate” levels of human control in any weapons use.  Matthew Waxman and I discussed the HRW report at Lawfare; DangerRoom-Wired’s Spencer Ackerman discusses the HRW report, the DOD Directive, and Matt’s and my approach in our “Law and Ethics for Robot Soldiers.”  Benjamin Wittes at Lawfare excerpts some important chunks of the DOD Directive.

Ackerman says of the DOD Directive that the “Pentagon wants to make sure that there isn’t a circumstance when one of the military’s many Predators, Reapers, drone-like missiles or other deadly robots effectively automatizes the decision to harm a human being.”  The Directive seeks to  ”‘minimize the probability and consequences of failures’ in autonomous or semi-autonomous armed robots ‘that could lead to unintended engagements’, starting at the design stage.”  Its solution – unlike HRW’s call for what its report terms an “absolute ban” – is based upon constant reviews of the military system (unintended effects on weapons systems might occur because of changes to non-weapons systems, after all) – from the inception of design forward.  The DOD Directive is intended to be flexible in application and to apply to all military systems, so it relies on a general standard of “appropriate” levels of human control over the system at issue, without specifying in each case what that will mean.

Ackerman adds that Matt Waxman and I should be pleased with the Directive’s approach, and we are.  In our “Law and Ethics for Robot Soldiers” article, he notes, we

observe that technological advancements in robotic weapons autonomy is far from predictable, and the definition of “autonomy” is murky enough to make it unwise to tell the world that it has to curtail those advancements at an arbitrary point. Better, they write, for the U.S. to start an international conversation about how much autonomy on a killer robot is appropriate, so as to “embed evolving internal state standards into incrementally advancing automation.”

Waxman and Anderson should be pleased with Carter’s memo, since those standards are exactly what Carter wants the Pentagon to bake into its next drone arsenal. Before the Pentagon agrees to develop or buy new autonomous or somewhat autonomous weapons, a team of senior Pentagon officials and military officers will have to certify that the design itself “incorporates the necessary capabilities to allow commanders and operators to exercise appropriate levels of human judgment in the use of force.” The machines and their software need to provide reliability assurances and failsafes to make sure that’s how they work in practice, too. And anyone operating any such deadly robot needs sufficient certification in both the system they’re using and the rule of law. The phrase “appropriate levels of human judgment” is frequently repeated, to make sure everyone gets the idea. (Now for the lawyers to argue about the meaning of “appropriate.”)

In one sense, I suppose HRW could say that this is what their report calls for, since it tries to build in a notion of incremental reviews into what a treaty should mandate. But the purpose of these reviews for HRW’s proposal seems to be to indicate when the absolute ban on “development” of autonomous weapons systems is triggered.  The HRW report is not, to my reading at least, completely clear on what “development” means in the context of incremental reviews, or in the context of what the report itself calls an absolute ban; it seems to be trying to mix absolute apples with incremental oranges.

The role of incremental reviews for the Directive, by contrast, is not about whether some point triggering an absolute ban has been reached, but instead to determine whether the technological system, at that point in its development, preserves the “appropriate” amount of human control and, in the case of a system in the process of design and development, will continue to do so as development continues to a final system that has be legally evaluated for deployment.  This is a quite distinct meaning of “reviews”; it’s certainly not an absolute ban on “development” of systems that, in a world of murky, incremental technological progress might be closing in on human-less autonomy but might not.  It’s flexible as applied to incrementally advancing technology, not absolute.  It’s also worth pointing out that while there is a fundamental legal standard at issue here – the requirement of legal review of weapons for compliance with the laws of war – most of this is really policy seen as trying to implement law at the front end, particularly with regards to the incremental, and in some cases incidental-but-dangerous, progression of systems that are at the design stage only.

At the end of the day, I think the DOD Directive approach will be that taken by countries, and not just the US, developing automated technologies in weapons and military systems generally.  But Matt Waxman and I will have more to say about both these documents and their respective approaches over the next while.