Archive of posts for category
International Security

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

New Opportunities to Research Civil War at Melbourne Law School

by Kevin Jon Heller

My colleague Anne Orford has just received — and deservedly so — a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program:

Professor Orford’s ARC Laureate Fellowship Program will undertake a comprehensive analysis of one of the most pressing questions in contemporary international law and politics: whether, and if so under what conditions, foreign actors can lawfully intervene in civil wars. The lawfulness of external intervention in the domestic affairs of states is one of the most enduring and contested topics of debate within the disciplines of international law and international relations. The intensity of debates about the legality of intervention by the US and its allies in Iraq and Syria on the one hand, and by Russia in the Ukraine on the other, illustrates both the urgency of this issue and the difficulty of finding general principles to address it. The project will combine archival research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.

The program is now inviting applications for two Postdoctoral Fellowships, which are full-time, fixed term research positions that can last up to five years. Here is the description:

The Postdoctoral Fellows will be appointed to undertake projects that explore the historical and contemporary practice of interventions in a specific region, chosen from Africa, Asia, Europe, Latin America, or the Middle East. The specific regional studies, as well as the cases to be explored as part of those regional studies, will be chosen by the Postdoctoral Fellows in conjunction with Professor Orford. The Postdoctoral Fellows will take responsibility under the supervision of Professor Orford for developing the regional studies and for drawing out cross-cutting themes between them. The aim will be to map and evaluate the specific legal, political, and economic issues that have influenced and shaped interventions in civil wars in particular regions, the legal justifications that have accompanied those interventions, and the normative innovations that have resulted. It is well accepted, for example, that the principle of non-intervention has a particular meaning and importance in the inter-American context, as many early formulations of the principle emerged out of attempts to renegotiate the relation between the US and its near neighbours in Central and South America. Similarly, the responsibility to protect concept has a close association with African states and attempts to manage civil wars on that continent. The cases within each regional study may include pre- and immediately post-World War 2 situations (such as those in Spain and China), early post-colonial conflicts (such as those in Korea, Vietnam, and Cambodia), proxy wars of the 1980s (such as those in Afghanistan and Nicaragua), and post-Cold War situations (such as those involving the former Yugoslavia, Rwanda, the Democratic Republic of the Congo, Libya, Iraq, Ukraine, and Syria). The focus of the program is on developments over the twentieth and twenty-first centuries, but proposals focusing on nineteenth century practice will also be considered. It is anticipated that the studies undertaken by the Postdoctoral Fellows will be published as monographs.

The program is also seeking two PhD students:

The doctoral projects will each study an emerging area of conceptual innovation that has played a role in reshaping the broader normative framework governing intervention in civil war over the past decades. One project will analyse the impact of the related concepts of humanitarian intervention and the responsibility to protect, and the second will analyse the impact of the concepts of collective self-defence and intervention by invitation that have been invoked in the context of the war on terror. The projects will study particular cases of intervention in civil war that were justified either in terms of protecting civilians (using concepts such as humanitarian intervention or the responsibility to protect) or of responding to terrorism (using concepts such as collective self-defence or intervention by invitation). The projects will involve detailed analyses of how legal arguments have been used in practice – for example, the ways in which legal concepts have been invoked by parties to civil wars (including foreign interveners), the extent to which the use of legal arguments has been innovative and directed to transforming existing norms, the patterns of diplomatic and military practice that those legal arguments have sought to justify, how other states have responded to such justifications, what positions states have taken publicly in debates on relevant issues in the General Assembly and the Security Council, and how decisions by external actors to support or recognise particular groups have been publicly justified. It is anticipated that the resulting doctoral theses will be published.

Anne is a fantastic scholar, the law school has a superb academic culture, and there are very few places in the world more pleasant to live than Melbourne. I hope interested readers will apply. You can find more information here.

Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Ryan Goodman to Work at DoD for One Year

by Kevin Jon Heller

Ryan — friend of Opinio Juris and friend of Kevin — has been appointed Special Counsel to the General Counsel of the Department of Defense. Here is a snippet from NYU’s press release:

In his new role at the Department of Defense Goodman will focus primarily on national security law and law of armed conflict. “I am very humbled to have this opportunity to work with the General Counsel and the outstanding people of the Defense Department,” said Goodman. “I look forward to the hard work and challenges ahead in this arena of public service.”

One of the nation’s leading scholars in national security and human rights law, Goodman co-founded Just Security, a blog for the rigorous analysis of law, rights, and national security, in 2013. With Goodman serving as co-editor-in-chief, Just Security quickly achieved international prominence for providing balanced and broad analysis of major legislation and executive action, information about the impact of US national security policies around the world, and scrutiny of international legal developments in the national security area.  During his time with the Defense Department, Goodman will discontinue his work with Just Security.

I’m sad that we will not have the benefit of Ryan’s blogging for a year, but the blogosphere’s loss is the DoD’s gain. Readers know that I have reservations about academics going into government service, but I have no doubt whatsoever that Ryan — like his mentor Harold Koh before him — will be a principled, conscientious, and even courageous voice in government. Indeed, Ryan has never shied away from criticising the USG when he thinks its approach to international law has been misguided. I just regret that we will probably never get to know how he spent his year with the DoD!

Please join me in congratulating Ryan — though I think the DoD is really the one that deserves congratulations.

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.

Is Law Losing Cyberspace?

by Duncan Hollis

The ALL CAPS headline of the last few hours involves news that social security and other identifying information for some 4 million U.S. federal workers was compromised in a cyber exploitation that, if one believes the unofficial finger pointing, came at the behest of the Chinese government.  Of course, it was just yesterday, that the Council on Foreign Relations’ Adam Segal was reporting how China was crying foul over “OceanLotus” a cyber exploitation that counted various Chinese governmental agencies and research institutes among its victims (and where the fingers were pointed back at the United States). And that’s to say nothing of the Snowden disclosures or the tens of millions of people whose personal data has been compromised via data breaches of an ever-expanding list of private companies (e.g., in February 2015 the U.S. health insurer Anthem admitted that up to 80 million people in its databases had their personal data compromised).  Now, maybe such data breach stories are hyperbolic, offering big numbers of potential losses that do not necessarily mean actual data compromises, let alone consequences for the associated individuals.  Nonetheless, the current zeitgeist seems to be the normalization of cyber insecurity.

As someone who believes international law has an (imperfect) role to play in preserving international peace and stability, I find the current scenario increasingly worrisome.  The level and breadth of cyber exploitations suggests a world in which actors are engaged in a race to the bottom of every data well they think might be useful for their own purposes, on the theory that their adversaries (and their allies) are all doing the same.  In such a world, law seems to be playing a diminishing role.

To be clear, domestic law certainly may constrain (or facilitate) a State’s cyber operations, as all the anxiety associated with the expiration of the PATRIOT Act and this week’s passage of the USA FREEDOM Act suggest. For those of us who care about international law, however, it seems increasingly marginalized in the current environment.  We’ve spent much of the last several years, focused on how international law applies to cyber-operations with huge efforts devoted to questions of line-drawing in what constitutes a prohibited use of force in cyberspace under the jus ad bellum or where the lines are for an attack under the jus in bello.  The Tallinn Manual is the paradigmatic example of this (often quite good) work.  More recently, States and scholars have moved on to cyber operations below these lines, with attention shifting in Tallinn and elsewhere to which cyber operations may generate counter-measures and defining when cyber operations violate the duty of non-intervention.

Such efforts have (so far) had relatively little to say on the question of a cyber exploitation that is best characterized as espionage.  With the exception of U.S. efforts to decry “economic” cyber espionage (as opposed to national security cyber espionage), most international lawyers have shrugged their shoulders on the legality of governments (or their proxies) stealing data from other governments or their nationals.  The conventional wisdom suggests intelligence agencies will be intelligence agencies and we should let this play out via diplomacy or power politics.  To the extent international law has long failed to prohibit espionage, the thinking goes, by analogy it should also leave cyber espionage alone.  And if that’s true, international law has little to say about China taking whatever data it can on employees of the U.S. federal government.

Of course, conventional wisdom is often conventional for good reasons.  From a national security perspective, there are important interests that militate against regulating or constraining data collection from abroad.  Yet, I worry that we’re reaching a tipping point where in conceding international law can do little to nothing for the problem of cyber exploitations, we are effectively conceding the rule of law in cyberspace.  It’s understandable that, from a rational perspective, States will want to do as much of this activity as their technical capacity allows.  But, such self-centered policies have generated a dramatic collective action problem.  The current cyber system is certainly sub-optimal, whether you consider it in economic, humanitarian, or national security terms. The economic costs of the status quo are by all accounts growing, whether in terms of losses of data and IP, or the costs of cleaning up after exploits occur.  Similarly, the ability of individuals to preserve their privacy is rapidly diminishing, and the right to privacy along with it.  And, of course, national governments are fighting, and losing, the battle to keep their own data (and secrets) secure.

All of this leads me to ask whether it’s time to revisit the question of how international law deals with data breaches?  I recognize some may say “no” or that after long and careful thought the answer may remain the same.  But, the rising importance and success rates of data breaches across the globe suggests it’s high time for international law to at least engage these questions more closely.

What do others think?  Is international law losing in cyberspace or is there still a chance that it can play a regulatory role over modern cyberthreats, even if only an imperfect one?

 

Appeals Chamber Fails To See the Forest — Complementarity Edition

by Kevin Jon Heller

Earlier this week, the Appeals Chamber rejected Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo’s 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo’s domestic convictions failed to satisfy Art. 17’s “same conduct” requirement, making her case admissible. Here are the key paragraphs:

99. The Pre-Trial Chamber found that the conduct underlying the alleged economic crimes was “clearly of a different nature” from the conduct alleged in the proceedings before the Court, and therefore “irrelevant”.171 The Pre-Trial Chamber further found that according to the documentation provided by Côte d’Ivoire, in particular Annex 8 to the Admissibility Challenge, the alleged conduct was characterised as [REDACTED].172 In view of the description of the alleged acts provided in the material submitted by Côte d’Ivoire, the Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find this conduct to be of a different nature to Ms Gbagbo’s alleged conduct in relation to the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts, on the basis of which the Warrant of Arrest was issued against her by the Court. In addition, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

100. As regards crimes against the State, the Pre-Trial Chamber noted that in the domestic proceedings it is alleged that Ms Gbagbo [REDACTED].173 The Pre-Trial Chamber further noted that, in the domestic proceedings, “there are references to, inter alia, the allegations of [REDACTED].174 The Pre-Trial Chamber observed that the provisions criminalising such alleged conduct are included in the section of the Ivorian Criminal Code concerning felonies and misdemeanours against the safety of the State, the national defence and the public security.175 The Pre-Trial Chamber concluded that the alleged conduct only includes [REDACTED] and therefore the domestic proceedings in question “do not cover the same conduct” that is alleged in the case before the Court.176 The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find, on the basis of the description of the alleged conduct contained in the documents provided by Côte d’Ivoire, read in light of the applicable provisions of the Ivorian Criminal Code, that this conduct, characterised as infringing [REDACTED], is not the same as that alleged before the Court. In addition, as indicated earlier, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

I have no doubt that the Appeals Chamber’s application of the “same conduct” requirement is correct. But I think it is important to once again ask a basic question about the requirement: what does the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? 20 years is a significant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Even if the OTP manages to convict Gbagbo, she is very unlikely to receive a substantially longer sentence. So why should the ICC waste the OTP’s precious and overstretched resources by trying Gbagbo again?

My answer, not surprisingly, remains the same: it shouldn’t. The ICC simply cannot afford the kind of hyper-formalism that underlies the “same conduct” requirement. As I have argued elsewhere, the Court should defer to any national prosecution that results in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s prosecution.

In fairness to the Appeals Chamber, it’s worth noting that Gbagbo’s attorney challenged the Pre-Trial Chamber’s application of the “same conduct” requirement; she did not challenge the requirement itself. That’s a shame, because I think Gbagbo’s case perfectly illustrates why the Appeals Chamber should jettison the “same conduct” requirement. Would it? Probably not — as I note in my article, the requirement does have a clear textual basis in Art. 20 of the Rome Statute (“upward” ne bis in idem). But the Appeals Chamber has proven remarkably willing to ignore the Rome Statute when it proves inconvenient, so it would have been worth a shot — especially as the “same conduct” requirement is fundamentally inconsistent with the principle of complementarity’s emphasis on the ICC being a court of last resort . At the very least, challenging the requirement would have forced the Appeals Chamber to explain why the requirement’s waste of OTP resources is warranted. I would have liked to read that explanation.

When the Left Shoots Itself in the Foot (IHL Version)

by Kevin Jon Heller

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:

Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon.

Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.

Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.

At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals…

The Fog of Technology and International Law

by Duncan Hollis

[Note: This piece is cross-posted to the SIDIblog, the blog of the Italian Society of International Law, which was kind enough to ask for my views on these topics; for those interested in their other posts (in multiple languages), see here.]

 

  • War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty.

Carl von Clausewitz, Vom Kriege (1832), Bk. 1, Ch. 3.

  • It is a cruel and bitter truth that in the fog of war generally and our fight against terrorists specifically, mistakes — sometimes deadly mistakes — can occur.  But one of the things that sets America apart from many other nations, one of the things that makes us exceptional is our willingness to confront squarely our imperfections and to learn from our mistakes. 

U.S. President Barack Obama, April 23, 2015

I arrived in Rome for a month-long visit at LUISS Universita Guido Carli to find a country wrestling with the tragic news of the death of one of its own – Giovanni Lo Porto.  As President Obama himself announced, the United States inadvertently killed Lo Porto and Warren Weinstein, a USAID contractor, as part of a January drone strike targeting an al Qaeda compound in the Afghanistan-Pakistan border region.   Both aid workers were Al Qaeda hostages; Lo Porto had been kidnapped in 2012, while Weinstein was abducted in 2011.

The story made global headlines for Obama’s apology that the United States had not realized these hostages were hidden on-site, and thus their deaths were a tragic mistake:

As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations, including the one that inadvertently took the lives of Warren and Giovanni.  I profoundly regret what happened.  On behalf of the United States government, I offer our deepest apologies to the families.

President Obama directed a “full review” of the strike, and there are calls for other investigations as well, including here in Italy.

Amidst this tragedy – and some of the apparent missteps by the U.S. (not to mention Pakistani) governments (painfully noted by Mr. Weinstein’s family) — there is something remarkable in the Obama statement.  Unlike so many other reports of U.S. errors or controversial programs in recent years (think Wikileaks or this guy), here was the U.S. Government, on its own, declassifying and disclosing the facts surrounding a drone strike that by all accounts appears to have included a major mistake in its execution.  For lawyers, moreover, such disclosures are critical – without them we are left with what I’d call the “fog of technology” which precludes the application of the rule of law in an open and transparent way.

Clausewitz’s concept of the “fog of war” is simple, and well known:  it describes the situational uncertainty that military actors face, their lack of perfect information about an adversaries’ intentions and capabilities (not to mention incomplete knowledge of their allies’ intentions and capabilities).   What looks good on paper before an armed conflict may prove unworkable as the conditions of war – physical hardship, the need for immediate decision-making, emotional strains, etc. – complicate decision-making, and with it, the achievement of military objectives.

I use the term “fog of technology” to identify a similar situational uncertainty that lawyers face when confronting the deployment of new technology.  Simply put, new technology can cloud how lawyers understand the content of law.  Of course, lawyers can assess new technology and find it analogous to prior cases, allowing for what I call “law by analogy”, where the nature or function of a new technology is regulated according to how an analogous technology or function has been regulated in the past.  But the more novel the technology – the more it can function in non-analogous ways, or with effects previously unimagined – the more lawyers may (or at least should) struggle with interpreting and applying the law to it.

Now, the fog of technology can emerge in all sorts of legal systems and all sorts of contexts from 3D printing to nanotechnology to driverless cars.  But President Obama’s explicit reference to Clausewitz makes me think about it in the particular context of warfare itself.  We are very much in a fog of technology when it comes to applying law to modern conflicts, whether it’s the remotely-piloted drone that killed Lo Porto and Weinstein, Stuxnet, or rumors of truly autonomous weapon systems (or “killer robots”).  Which domestic and international legal frameworks regulate the deployment of these technologies?  Does international humanitarian law (IHL) govern these operations, and, if so, does it do so exclusively, or do other regimes like international human rights apply as well?  To the extent a specific regime applies – IHL – how do its rules on things like distinction or neutrality apply to technologies and operations that may have no prior analogues?  More specifically, how does the law treat specific cases – was the killing of Lo Porto and Weinstein, tragic but legal, or was it an internationally wrongful act?

Of course, technology is not the only reason we have such questions.  Indeed, several scholars (most notably Michael Glennon) have identified the idea of a “fog of law.”  The rise of new types of non-state actors such as Al Qaeda continue to generate legal uncertainty; more than a decade after September 11, debates persist over whether and when U.S. counter-terrorism operations fall within a criminal law framework, or, as the U.S. insists, within the laws of armed conflict.   Similarly, when the United States targets and kills a U.S. citizen abroad (such as Ahmed Farouq, the American affiliated with Al Qaeda, who died in the same strike that killed Lo Porto and Weinstein), the question is not so much how the technology did this, but whether the U.S. Constitution regulates such killing.

Still, I think there are features of technology itself that make lawyering in this context significantly more difficult.  My co-blogger Ken Anderson recently summarized a few of the most important aspects in a recent post at the Hoover Institution.  He identifies several commonalities among cyberweapons, drones, and killer robots:  (i) their ability to operate remotely; (ii) their capacity for extreme precision (at least when compared to earlier weapons); and (iii) the diminished ease of attribution.  Of these, I think the problem of attribution is foundational; law will have little to say if legal interpreters and decision-makers do not know how the technology has been deployed, let alone how it functions or even that it exists in the first place.   In such cases, the fog of technology is tangible.

Consider the story of drones and international law. (more…)

Wherein I Defend Jeb Bush (Really!)

by Kevin Jon Heller

Both the liberal media and the conservative media are pulling out the fainting couches over something Jeb Bush said to Megyn Kelly during an interview on Fox News. In response to a question about whether he would have invaded Iraq in 2003 if he knew what we know now about WMDs and the like, Jeb supposedly said yes — he would still invade. That’s how both Josh Marshall and Byron York (polar opposites, they!) read Jeb’s answer. (And Kevin Drum. And Ed Kilgore.)

But that’s not what Jeb said. Here is the exchange, taken from York’s post:

Fox News’ Megyn Kelly asked Bush a straightforward, concise question: “Knowing what we know now, would you have authorized the invasion?” Bush’s answer was an unhesitating yes.

“I would have, and so would have Hillary Clinton, just to remind everybody,” Bush said, “and so would have almost everybody that was confronted with the intelligence they got.”

“You don’t think it was a mistake?” asked Kelly.

“In retrospect, the intelligence that everybody saw, that the world saw, not just the United States, was faulty,” Bush answered.

Jeb now says that he misunderstood the question. And that does, in fact, seem to be the case. Note the verb tenses in his first answer: he “would have” invaded Iraq, as “would have” Hillary Clinton and anyone else who had seen the intelligence “they got.” He didn’t say he or Hillary or anyone else “would” invade Iraq given the intelligence “they have now.” The tenses thus clearly indicate that Jeb was answering a different question — namely, whether he would have invaded Iraq given what decision-makers knew at the time. That reading is then confirmed by his second answer, in which he acknowledges that “in retrospect” — ie, based on what we now know — the invasion was a mistake.

To be sure, Jeb deserves some criticism for his answer. A number of important people opposed the invasion of Iraq even in the face of the faulty intelligence George Bush and Hillary Clinton received. And, of course, if Jeb wants to be president, he should probably pay attention to the questions journalists ask him in televised interviews.

But Jeb didn’t say he would have invaded Iraq knowing what we know now. He just didn’t.