Dan Blumenthal of AEI has a thoughtful piece in Foreign Policy on different tactics the U.S. could take to “win a cyberwar” with China. I think it is more about how the U.S. should “fight” the cyberwar with China and other governments that are going to use cyber-attacks against US companies and government entities.  Still, what caught my eye are two interesting legal proposals.

1) The US could amend the Foreign Sovereign Immunities Act to permit lawsuits against governments and government entities (like China’s) for cyberattacks and cybertheft.  I suppose the idea would be that a US company could sue the infamous People’s Liberation Army unit that is allegedly sponsoring many of the cyber attacks against the U.S.  I think this is a not very good  strategy since such litigation for state sponsors of terrorism have not gone very well.  And it would seem to require the US to open the doors to litigation against a foreign sovereign, which will certainly invite retaliation against the US government and US companies doing business with China. So I assume no such lawsuits would ever be brought, or almost never would be brought.  Still, worth thinking about.

2) Here is the hot idea:  Issuing letters of marque and reprisal against cyberattackers.  This idea has been developed by GMU lawprof Jeremy Rabkin and Ariel Rabkin here. I think as a policy matter, the idea of bringing private non-governmental resources into play is really important, since they have much of the technical expertise and suffer the most damage from cyberattacks.  On the other hand, officially sanctioning private warfare via “cyber-privateers” seems more trouble than its worth.  You are responsible for the damage they wreak, but you don’t actually control them very well since they are not in your chain of command.  And, oh yes, other countries could do this even better than the U.S. could.  Except they simply deny their relationship with the “private”attackers.

And I also think that international law would have something to say about this.  If a state of armed conflict existed, than it is easier to imagine unleashing a private band of cyberwarriors.  But absent that, I don’t think the cyber-privateers makes much legal or policy sense.  How could the US legitimately sanction private attacks against a foreign government absent a state of armed conflict without having to treat all foreign private attacks against it as “armed attacks” as well?

Still, I like the idea of expanding the universe of U.S. expertise and ability in the cyberwars, taking an offensive rather than a defensive approach, and thinking of new ways to do so. I am just not sure reviving private warfare will necessarily do that.

Libya has filed yet another brief concerning the admissibility of the case against Saif Gaddafi. The new brief is more than 50 pages long, so it’s going to take some time to digest. But we really don’t have to go beyond pages 22-24, because Libya’s admissions in those paragraphs doom — or at least should doom, if the Pre-Trial Chamber would ever actually rule — its admissibility challenge:

48. The Libyan Government does not deny that Saif Al-Islam Gaddafi remains in Zintan (one of the largest cities in north-western Libya) and that efforts to arrange his transfer to a detention facility in Tripoli are ongoing.[57] During his incarceration in Zintan Saif Al-Islam Gaddafi has been visited by representatives of the International Committee of the Red Cross and Human Rights Watch on several occasions.[58] Permission was granted by the Minister of Justice, Salah Marghani, for a further visit by Human Rights Watch on 4 March 2013.[59] It is now a matter for Human Rights Watch to arrange this visit at their earliest convenience.

49. Since 30 October 2012 each of the extensions of Saif Al-Islam Gaddafi’s periods of detention have been judicially approved by Tripoli based judges[60] who have travelled to Zintan to conduct a private hearing (ie. a closed session) on the extension of his remand period. These hearings have been facilitated by the local authorities in Zintan without any difficulties. The Libyan Government
understands that the reference on the remand extension documents to these hearings bearing held in public is an error as the hearings were held in closed session and were not open to members of the public.

50. The Libyan Government will shortly begin implementation of its recently devised proposal for the members of the Zintan brigade responsible for guarding Saif Al-Islam Gaddafi in Zintan to be trained and regularised so as to form part of the judicial police which would then guard him upon his transfer to a central government controlled prison in Tripoli. It is not possible to say with any certainty the exact date of Mr Gaddafi’s transfer to Tripoli but it is understood that this will occur before the earliest possible estimated commencement date of the trial in May 2013.

51.It is anticipated that if the national security proceedings, which are presently in the pre-trial phase and for which there was a public court hearing[61] in the Zintan court on 17 January 2013, are to proceed to trial that once Saif Al-Islam Gaddafi is transferred to Tripoli these proceedings will also be transferred to the Tripoli court.

The first thing to note is that, even if these claims are true, Libya is still currently “unable” to prosecute Saif within the meaning of Art. 17(3) of the Rome Statute…

The win in question concerns the privileged documents the Libyan government seized from Melinda Taylor and her OPCD colleagues while they were meeting with Saif Gaddafi in Libya. In late January, the OPCD asked the Pre-Trial Chamber to order Libya to return the documents and destroy any copies it had made of them. Here is what it argued, as summarized by the Pre-Trial Chamber:

My previous posts (see here for the most recent) have explained why Judge Kozinski’s opinion in the Sea Shepherd case wrongly considers a political end to be a private end. In this post I want to highlight what is ironic — though not technically incorrect — about Judge Kozinski’s conclusion that Sea Shepherd committed an act of piracy on “the high seas.” That is an essential element of piracy; UNCLOS art. 101, for example, defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed… on the high seas, against another ship.” The high seas, in turn, are defined by art. 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an  archipelagic State.”

The Japanese whaling that Sea Shepherd resisted took place near Antarctica in the Australian Whale Sanctuary (AWS), which was established by John Howard’s conservative Australian government in 1999. Here is a map of the AWS:

Did Sea Shepherd’s acts take place on the “high seas”? Not according to Australia and a number of other states. Australia has long claimed sovereignty over what it calls the Australian Antarctic Territory (AAT), the white part of Antarctica on the map, and it has also consistently claimed sovereignty over the waters adjacent to the AAT, the blue section of the map that stretches around the AAT. Those waters, which are part of Australia’s Exclusive Economic Zone (EEZ), include the AWS. A good history of Australia’s claim can be found in this law-review article by David Leary; here is the Australian government’s own statement about the AWS…

Eugene Kontorovich has responded at Volokh Conspiracy to my previous post about politically-motivated acts of violence on the high seas. I invite interested readers to examine for themselves the various documents Eugene and I discuss; in this final post I simply want to correct a fundamental error on Eugene’s part concerning the Harvard Draft Convention on Piracy — an error that goes to the very heart of our debate. Both of our arguments depend on the Draft Convention and its commentary, because — as Eugene points out — the ILC Commentary to the Law of the Sea Treaty specifically notes that the Commission “in general” agreed with the Draft Convention. The proper interpretation of the Draft Convention, therefore, is of critical importance to the proper interpretation of the Law of the Sea Treaty.

Here is what Eugene says about whether “private ends” include acts of violence on the high seas that are politically motivated:

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Eugene’s claim about Articles 3 and 16 (his reference to Article 14 must be a typo) is extremely misleading. It is true that the language on which I rely does not come from Article 3, which defines piracy under international law — the kind of piracy to which universal jurisdiction applies under Article 2 of the Draft Convention, and the kind of piracy that is governed by the substantive provisions in Articles 3-15 of the Draft Convention. But I quote the commentary to Article 16 instead of to Article 3 for a very specific reason: because Article 16 deals with acts that do not qualify as acts of piracy under international law and are thus excluded from universal jurisdiction and the substantive provisions of the Draft Convention.  Here is the text of Article 16 (emphasis mine)…

Both Eugene and Maggie disagree with my claim that politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit. Here is Eugene (my emphasis; combining two comments):

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

I would add that the Harvard commentary only seems to make an exception for the classic hard case – rebel warships in an actual belligerency. The International Law Commission seems to endorse that exception in its commentary to the treaty draft, but at the same time seem to exclude merchant vessels not in a belligerent context from an possible immunity.

There are three problems with Eugene’s argument. First, it does not address the League of Nations report, which specifically states that politically-motivated acts do not qualify as piracy. The report adopted a private/political binary, not a private/public one. Second, the Harvard commentary does not make an exception only for “rebel warships in an actual belligerency.” On the contrary, the commentary specifically rejects the idea that the exception applies only to rebel groups that have been recognized as belligerents. Here is the quote from my previous post (emphasis mine)…

That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically — and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the “unwillingness” prong of the the admissibility test:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable… (a)  The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5.

As I noted in my previous post, Libya has not denied that Saif will be prosecuted in Zintan before (supposedly) being prosecuted in Tripoli; indeed, Taha Baara, the official spokesperson for Libya’s General Prosecutor, specifically told Reuters last month that ”[i]nvestigations for trying him for war crimes are over and he will be put on trial for that at a later time.” That acknowledgment needs to be read in conjunction with a number of statements by Libya.  First, Libya insists that it is responsible for both prosecutions — thereby denying the disquieting possibility that the Zintan case is being prosecuted by a militia over which the Libyan government has no control (para. 6; emphasis mine)…

As I have explained before, Libya’s admissibility challenge must fail if it cannot ensure that the militia in Zintan who have Saif custody will transfer him to the government to stand trial, because Art. 17(3) of the Rome Statute deems a state “unable” to prosecute if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused.” A state’s inability to apply its criminal law to all of its territory is the prototypical example of “unavailability.” Moreover, in a hearing at before the Pre-Trial Chamber last October, the Libyan government admitted on the record that a trial in Zintan on the conduct at issue in the ICC proceedings could not satisfy Art. 17 (pp. 19-20; emphasis mine):

Since the filing of Libya’s 1 May 2012 challenge, the investigation of Mr Gaddafi has continued to progress and other arrangements for his trial have been made by the new government. These arrangements include the building of a courtroom complex and prison facility in Tripoli, which is known as Tajura, and although there’s been some recent contention in the press as to the planned location of any future trial, President el-Magariaf confirmed to the press on 22 September 2012 that there is no prospect of a trial taking place in Zintan due to inadequate courtroom facilities and the other infrastructure that will be needed for a trial.

With each passing day it becomes increasingly clear that Libya has no reasonable prospect of obtaining Saif from the Zintan militia anytime soon. The OTP’s most recent filing makes clear (para. 43) that it is not satisfied that Libya can obtain Saif — skepticism that needs to be taken particularly seriously in light of the OTP’s consistent support for a domestic prosecution. (Which seems to be changing, given the OTP’s most recent filing and a couple previous ones.) And the OPCD’s most recent filing – a withering critique of Libya’s attempts to support its admissibility challenge with anything more than unsubstantiated allegations — provides far more detail concerning  Libya’s lack of control over the Zintan milita holding Saif…

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

In his Hamdan opinion in 2006 Justice Stevens described the conflict between al Qaeda and the United States as a NIAC (his opinion did not address in any way the geographical scope of that NIAC).  He then went on to measure the process provided by the military commissions against the requirements laid out in AP I Art. 75.  At the time I found this to be odd because AP I is supposed to apply to IAC’s while AP II applies to NIAC’s.  As I pointed out here this was all the more puzzling because AP II Art. 6 is worded in almost exactly the same way as AP I Art. 75.  However, Art. 6 is four paragraphs shorter than Art. 75 and fails to provide some of the protections that Justice Stevens found to be indispensable in his opinion striking down the military commissions.  At the time everyone seemed to agree with Stevens’ reliance on Art. 75 and most critiques of the future military commissions also referenced Art. 75 as the standard against which they were to be measured.  I don’t believe I have ever seen a reference to AP II Art. 6 in any of these discussions. This agreement in relying upon an AP I article to determine the indispensable guarantees associated with a NIAC cut across the political spectrum from members of the JAG Corps to ICRC representatives to members of Human Rights Watch and Human Rights First.  When, as someone brand new to academia, I raised the textual problem one individual patiently explained to me that a lot had changed since 1977 and intervening wars, particularly the one in the former Yugoslavia, had changed the way this divide was perceived.

Why am I mentioning this now?  Because it seems as though IHL scholars currently have an interest in AP II that did not seem to exist in 2006.  In a variety of areas from Deborah’s analysis of the White Paper to panelists at various events insisting that the line between AP I and AP II should not be blurred there appears to be a (re)new(ed) interest in keeping the provisions of the two Protocols separate.  Meanwhile Kevin’s analysis of the White Paper relies heavily on provisions found in AP I.

My own view is that textually there is a clear divide between…

My friend Jens Ohlin (Cornell) has just posted a very important article on SSRN entitled “Targeting and the Concept of Intent.”  Here is the abstract:

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

I am completely in agreement with Jens concerning recklessness/dolus eventualis.  The more difficult issue, which the essay touches on, is whether knowledge/dolus indirectus qualifies as intent in the targeting context. I believe it does, for all the reasons I’ve previously discussed on Opinio Juris. (See here and here, for example.)  Jens is more agnostic, at least for now.

As Larry Solum would say, read Ohlin!

Last May, I offered some critical thoughts on Opinio Juris about Charles Taylor’s 50-year sentence at the Special Court for Sierra Leone.  I have just finished a short essay (8,000 words) on Taylor’s sentence that will appear in an upcoming issue of the Journal of International Criminal Justice; you can find the essay on SSRN. Here is the introduction:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence must not be ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.

Comments and criticisms welcome!

The OTP has weighed in on Libya’s ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error. Here are the relevant paragraphs (emphasis mine):

42. However, the Prosecution also notes that not all detention centers, including apparently the one holding the suspect in this case, are under the control of the Minister of Justice and Libya has no access to certain detainees held in these centers. Further, abuses and deaths have occurred in detention centers in 2012,

43. Most notably, Libya does not clarify whether it has gained custody over Saif Al-Islam and when his transfer to Tripoli will be effected…

44. Nonetheless, the investigation of the case against Saif Al-Islam has progressed and the Libyan legislation does permit a trial in absentia. Hence, and in light of the evidence submitted and notwithstanding the challenges faced by Libya as a post-conflict country, the Prosecution concludes that Libya appears, at this time and in light of the materials considered, able to conduct the proceedings.

Libyan criminal law may permit a trial to be held in absentia, but the Rome Statute does not. Article 17(3) of the Rome Statute is explicit on this point — a state cannot be considered “able” to prosecute a defendant if it does not have that defendant in custody (emphasis mine):

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it actually effectuates Saif’s transfer, therefore, its admissibility challenge must fail.