Archive of posts for category
Law of War

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:



The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

Why Is the Lieber Prize Ageist?

by Kevin Jon Heller

Yesterday, my colleague Chris Borgen posted ASIL’s call for submissions for the 2016 Francis Lieber Prize, which is awarded annually to one monograph and one article “that the judges consider to be outstanding in the field of law and armed conflict.” I think it’s safe to say that the Lieber Prize is the most prestigious award of its kind.

But there’s a catch: you are not eligible for consideration if you are over 35. Which led Benjamin Davis to make the following comment:

For the record, the Lieber Prize criteria discriminates against persons like myself who at the ripe young age of 44 entered academia and was therefore nine years passed the upper limit in 2000. It particularly is galling when one realizes that Lieber WROTE his famous order at the age of 65.

If one wanted to correct this obvious and repugnant ageist requirement and one took the generous position that at 25 one could enter academia, then the criteria should suggest ten years maximum in academia. I still would be far passed the time-limit, but it would provide encouragement to those intrepid souls who decide later in life that being a legal academic is a noble calling for them and focusing on the laws of armed conflict is a wonderful arena in which to develop one’s research agenda.

I think Ben is absolutely right. The Lieber Prize’s hard age requirement obviously skews in favour of the kind of scholar who never spent considerable time outside of academia. Scholars who have had previous careers — whether in private practice, in government, in the military, or even working for organisations that do precisely the kind of law covered by the Prize, such as the ICRC — are simply out of luck if they worked for a number of years before becoming an academic.

If there was some sort of intellectual justification for limiting the Lieber Prize to academics under 35, the age limit might be okay. But, like Ben, I don’t see one. The most obvious rationale for some kind of limit is that ASIL wants to encourage and reward individuals who are newer to academia. But that rationale would suggest an eligibility requirement like the one that Ben suggests — a requirement that excludes submissions from individuals who have been in academia for a certain number of years, regardless of their chronological age. Some 34-year-olds have been in academia for nearly a decade! (I’m looking at you, Steve Vladeck.) And some 40-year-olds have been in academia only a few years. (Such as Chris Jenks, who was a JAG for many years before becoming a professor.) Yet only individuals in the latter category are excluded from the Lieber Prize — and they are excluded categorically.

Personally, I think Ben’s suggestion of 10 years from the time an individual entered academia is too long. I would still be eligible to submit with that limit! I would go with six years, like the Junior Faculty Forum for International Law. And also like the Junior Faculty Forum, I would permit the judges to wave the six-year requirement in exceptional circumstances — such as a woman or man who interrupted an academic career to take care of children.

What do you think, readers?

2016 Lieber Prize: Call for Submissions

by Chris Borgen

Professor Laurie Blank of The American Society of International Law’s Lieber Society on the Law of Armed Conflict has sent along the request for submissions for the 2016 Francis Lieber Prize. The prize is awarded to:

the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Here are the details

Criteria: Any work in the English language published during 2015 or whose publication is in proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger on 31 December 2015. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

Submission: Submissions, including a letter or message of nomination, must be received by 9 January 2016. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e mail.

Printed submissions must be sent to:

Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia 30322

Electronic submissions must be sent to:

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2016.

In 2015, the winners were:

Book prize:
— Gilles Giacca, “Economic, social, and cultural rights in armed conflict” (OUP:2014)

Essay prize:
— Tom Ruys, “The meaning of ‘force’ and the boundaries of the jus ad bellum: are ‘minimal’ uses of force excluded from UN Charter Article 2(4)?’, 108 AJIL 159 (2014).

Guest Post: The ICC intervenes in Georgia–When is a Peacekeeper a Peacekeeper?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

As Kevin noted last week, the ICC Prosecutor has officially requested authorization to proceed with an investigation into alleged crimes committed during the 2008 Russo-Georgian war. Anticipated by ICC observers for some time, the announcement has prompted speculation about the prospects of a full-blown investigation involving a P5 country (Russia), as well as the geopolitical ramifications of the ICC finally leaving Africa. In this post, I would like to focus on a discreet legal issue with ramifications that may turn out to be equally important in the long run: the Prosecutor’s charges relating to crimes against peacekeepers and why this matters for the future of peacekeeping operations.

In her submission to the Pre-Trial Chamber (PTC), the Prosecutor identifies two primary sets of war crimes and crimes against humanity that fall within her jurisdiction. In addition to the forcible displacement and persecution of ethnic Georgians, the Prosecutor plans to investigate “intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces (Request PTC, para. 2).”

Under the ICC Statute, attacks on peacekeepers are criminalized directly as war crimes. The two relevant provisions are articles 8 (2) (b) (iii) and 8 (2) (e) (iii), which apply to international and non-international armed conflict respectively:

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict (emphasis added).

If, as is expected, the Pre-Trial Chamber grants the request to open an investigation, the key question facing the Prosecutor will be whether the peacekeepers in the 2008 conflict were really just that – peacekeepers?

While this may seem like an unusual question, it should be emphasized that the facts are highly unusual, too. The Joint Peacekeeping Force (JPKF) in South Ossetia, which was established by the 1992 Sochi Agreement, comprised three battalions of 500 soldiers each provided by Russia, Georgia and North Ossetia. Though not formally a UN-mandated mission, it appears both the Security Council and the Organisation for Security and Cooperation in Europe recognized the JPFK as a peacekeeping operation (para. 149). However, the key point is that, unlike UN-mandated peacekeeping, the peacekeepers in South Ossetia were nationals of two of the three parties to the 2008 conflict: Russians and Georgians (South Ossetians were not allowed on the premises of the JPKF). In other words, the ICC Prosecutor’s charges relate to attacks against Russian and Georgian troops – deployed as part of a peacekeeping mission – in the context of an armed conflict where Russian, Georgian and South Ossetian troops fought against one another.

Why does this matter? Although it appears that peacekeeping involving parties to a conflict is not prohibited (e.g. the UN does not appear to have an explicit policy against it, even if peacekeeper nationality has, in the past, been a contentious issue in UN operations), the composition of the JPKF in South Ossetia raises important questions about the application of international law to peacekeeping, and in particular the applicability of international humanitarian law and international criminal law to the attacks that the ICC Prosecutor plans to investigate. Irrespective of whether such peacekeeping is allowed ‘on paper’, I argue that the unusual composition of the JPFK will likely negate some protections that peacekeepers normally enjoy.

The key legal issue that is likely to come before the ICC is who is entitled to peacekeeper status under international law? Although there is no international convention on peacekeeping (the UN Charter is silent on the matter as well), the rules applicable to peacekeeping are derived from over half a century of military practice, and it is generally accepted that three core principles apply: 1) consent of the parties, 2) impartiality and 3) non-use of force beyond self-defence. While there is much debate about the scope of these three principles, especially in recent peace operations, for the purpose of the Georgia investigation the important question will be whether the impartiality criterion was met. (more…)

Guest Post: Promising Development in Protecting Cultural Heritage at the ICC

by Matt Brown

[Matt Brown is a current LLM student at Leiden University, studying Public International Law, with a specific interest in international criminal law, transitional justice and cultural heritage law. He tweets about these and other topics @_mattbrown.]

The International Criminal Court concerns itself with the ‘most serious crimes of concern to the international community.’ Often we understand this term to reflect examples such as the atrocities currently taking place in Syria, where the specific target is human and impact is measured by death toll. Last weekend’s surrender of Mr Ahmad Al Mahdi Al Faqi to the ICC however, challenges us to rethink our conception of war crimes to include the broader, but often forgotten concept of cultural destruction. It also serves as a positive example of domestic cooperation with the Court as it was Niger who transferred Mr Al Faqi to the Court.

Mr Al Faqi is suspected under Article 8 (2) (e) (iv) ‘of committing war crimes in Timbuktu between 30th June and 10th July 2012, through ‘intentionally directing attacks against buildings dedicated to religion and or historical monuments’. Specifically, the charges relate to the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu and form part of the Court’s three-year interest in Mali, originating from Mali’s self-referral in 2012. To this day, UNESCO is working with other international actors and local groups to rebuild the mausoleums.

This case, although a first for the ICC, builds upon a body of law developed by the ICTY. This includes the Pavle Strugar case, where Strugar was found guilty on the basis of superior criminal responsibility for the ‘destruction of institutions dedicated to, inter alia, religion, and the arts and sciences’. International Criminal Law’s approach to cultural heritage has several drawbacks, but chiefly it suffers from a fragmentation and hierarchical approach between instances of international armed conflict, non-international armed conflict and internal disturbances. The decision therefore of the ICC to prosecute ‘cultural crimes’ could help to consolidate the principles of cultural heritage law and bring greater consistency to the protections afforded between the different forms of conflict.

It also promises to resolve a second issue, namely that the enforcement of cultural heritage protection and subsequent prosecution is too often lacking. With the destruction that ISIS continues to cause in Palmyra, it offers a promising hint that if the jurisdictional issues that currently prevent prosecuting senior ISIS leaders can be overcome, the prosecution of cultural damage will be on the agenda.

Important questions remain however about the Court’s interpretation of the regrettably narrow Article 8 provision within the Rome Statute­­, which reflects the traditional and outdated interpretation of culture as constituting solely of tangible objects. This approach finds its roots in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which refers in Article 1 (a) to ‘movable or immovable property of great importance to the cultural heritage of every people’. This conception of culture based on the tangible nature of buildings, libraries, churches and historical sites is furthered in the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage that refers in Article 1 to monuments and architectural works of outstanding universal value. Reflecting a definition of cultural heritage heavily influenced by Western thought, steeped in the value of archeological, literary and scientific importance.

Even with the entry into force of the Convention for the Safeguarding of the Intangible Cultural Heritage, the charges reflect both a promising intention to bring the perpetrators of cultural destruction to justice, but equally illustrate the constructed nature of culture, which overlooks the intangible aspect of cultural heritage that cannot be rebuilt with simple bricks and mortar. This case will be interesting for a variety of reasons, but we can hope that it offers an opportunity to build on the Prosecutor’s acknowledgment that the charges reflect the ‘callous assault on the dignity and identity of entire populations and their religious and historic roots.’

We should consider this an important breakthrough in strengthening both the enforcement of cultural heritage law and the ICC itself. In dealing with a definition that is slowly emerging from decades of Western bias, this case offers the victims of cultural heritage destruction the chance to be heard and to push for greater recognition of the impact is has upon them as people(s). The ICC therefore has a golden opportunity to improve its reputation in Africa by listening to victims and demonstrating that international law is responsive to the voices and concerns of third-world approaches and can evolve to take account of these. The domestic co-operation between Mali, Niger and the Court to bring Mr Al Faqi to The Hague also offers great hope that the Court can work effectively with African State Parties, despite the recent problems it faced in South Africa.

This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.

Why It’s Counterproductive to Discuss an MH17 Tribunal

by Kevin Jon Heller

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

A “Broad Consensus” — of Between Two and Four States

by Kevin Jon Heller

Yes, the “unwilling or unable” test marches on. The latest step forward is a Just Security blog post by Kate Martin, the Director of the Center for National Security Studies, that cites absolutely nothing in defense of the test other than another scholar who cites almost nothing in defense of the test. Here is what Martin says in the context of the UK’s recent drone strikes in Syria (emphasis mine):

Some issues raised by the UK Article 51 legal theory are less controversial than others. The US and other states understand customary international law to include the right to use military force in self-defense against armed attacks, and claim the right to use military force under Article 51 outside of an armed conflict. As Lubell has noted, there is support for reading Article 51 as justifying the use of military force against non-state actors. There is broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack.

And what does Martin offer in support of this “broad consensus”? A link to a blog post at Lawfare by Ashley Deeks, in which Deeks (1) correctly points out that the US and UK both support “unwilling or unable,” (2) claims that “France appears to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context,” and (3) states that Australia is “apparently relying on a collective self-defense of Iraq/unwilling and unable theory.”

So at most there is a “broad consensus” of four states in support of “unwilling or unable.” And perhaps there are only two. That’s quite a consensus.

This isn’t even instant custom. This is custom by scholarly fiat.

Poor ICC Outreach — Uganda Edition

by Kevin Jon Heller

The ICC has always had a legitimacy problem in Uganda. In particular, as Mark Kersten ably explained earlier this year, the Court is widely viewed by Ugandans as partial to Museveni, despite the fact that the OTP is supposedly investigating both the government and the LRA:

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

Given this history, you would think the Court would go out of its way to make sure people understand that it is not investigating only the LRA. You would be wrong. As I was perusing the ICC website yesterday, I found myself on the page dedicated to the Uganda situation. Other than providing information about ongoing cases, the page simply links to two press releases — one reporting the 29 January 2004 self-referral, and one reporting the OTP’s 29 July 2004 decision to open a formal investigation. Here is the self-referral press release:

President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC


Situation: Uganda

In December 2003 the President Yoweri Museveni took the decision to refer the situation concerning the Lord’s Resistance Army to the Prosecutor of the International Criminal Court. The Prosecutor has determined that there is a sufficient basis to start planning for the first investigation of the International Criminal Court. Determination to initiate the investigation will take place in the coming months.

President Museveni met with the Prosecutor in London to establish the basis for future co-operation between Uganda and the International Criminal Court. A key issue will be locating and arresting the LRA leadership. This will require the active co-operation of states and international institutions in supporting the efforts of the Ugandan authorities.

Many of the members of the LRA are themselves victims, having been abducted and brutalised by the LRA leadership. The reintegration of these individuals into Ugandan society is key to the future stability of Northern Uganda. This will require the concerted support of the international community – Uganda and the Court cannot do this alone.

In a bid to encourage members of the LRA to return to normal life, the Ugandan authorities have enacted an amnesty law. President Museveni has indicated to the Prosecutor his intention to amend this amnesty so as to exclude the leadership of the LRA, ensuring that those bearing the greatest responsibility for the crimes against humanity committed in Northern Uganda are brought to justice.

According to the Rome Statute, the Prosecutor has to inform all States Parties to the Statute of the formal initiation of an investigation. Following this the Prosecutor may seek an arrest warrant from the Pre-trial Chamber. To take this step, the Prosecutor must determine that there is a reasonable basis to proceed with an investigation. The Prosecutor will work with Ugandan authorities, other states and international organisations in gathering the necessary information to make this determination.

President Museveni and the Prosecutor of the International Criminal Court will hold a press conference on Thursday 29 January 2004 at 18:00 at the Hotel Intercontinental Hyde Park, London.

And here is the investigation press release:

Prosecutor of the International Criminal Court opens an investigation into Nothern Uganda


Situation: Uganda

The Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has determined that there is a reasonable basis to open an investigation into the situation concerning Northern Uganda, following the referral of the situation by Uganda in December 2003. The decision to open an investigation was taken after thorough analysis of available information in order to ensure that requirements of the Rome Statute are satisfied.

The Prosecutor has notified the States Parties to the ICC and other concerned states of his intention to start an investigation, in accordance with article 18 of the Rome Statute.

Notice the subtle change of language: whereas the first press release refers to “the situation concerning the Lord’s Resistance Army,” the second press release refers to “the situation concerning Northern Uganda.” That change reflects the OTP’s rejection of the one-sided nature of Uganda’s first self-referral, as Mark discusses above. But it’s a subtle change — and the Court does not explain it on the Uganda page or anywhere else on the website. If you’re an ICC expert, you will probably pick up on the difference yourself. But if you’re a layperson, you will come away from reading about the Uganda situation believing precisely what Mark accurately describes as being so devastating to the Court’s legitimacy: namely, that the ICC is investigating the LRA — and only the LRA.

Mark and I have each complained (see here and here) about the ICC’s inability to maintain an accessible and useful website. But at least those complains were just about how difficult it is to get documents in a timely fashion. The issue with regard to Uganda goes much deeper than that — the webpage affirmatively (if unintentionally) misleads the reader about the Court’s work in a manner that can only harm the Court.

For a struggling institution, that’s simply unacceptable.

Book Symposium: Cyber War–Introduction

by Kevin Govern

[Kevin Govern is Associate Professor of Law at Ave Maria School of Law.]

The science fiction author William Gibson coined the term cyberspace in his short story, Burning Chrome (1982), before most of the public had a concept of, let alone experience with, using networked computer systems. Science fiction has given way to cyber reality, with 42.3% of the world’s population using the Internet on a regular basis, some 741% growth between 2000-2014 alone. At the same time, cyber weapons and cyber warfare are among the most dangerous innovations in recent years. Cyber weapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide ranging potential consequences. A non-exclusive list of some notable past cyber incidents includes but is not limited to:

The US director of national intelligence, James Clapper, recently told the House intelligence committee the next phase of escalating online data theft most likely will involve manipulation of digital information, with a lower likelihood of a “cyber Armageddon” of digitally triggered damage to catastrophically damage physical infrastructure.

Contemporaneous with this writing, a Chinese delegation met with representatives from the FBI, the intelligence community and the state, treasury and justice departments for a “frank and open exchange about cyber issues” amounting to “urgent negotiations…on a cybersecurity deal and may announce an agreement when President Chinese President Xi Jinping arrives in Washington on a state visit on Thursday [24 September].”

In this era of great cyber peril and opportunity, my colleagues and co-editors Jens Ohlin from Cornell Law School and Claire Finkelstein from the University of Pennsylvania Law School and I had the privilege of contributing to and editing a book that assembles the timely and insightful writings of renowned technical experts, industrial leaders, philosophers, legal scholars, and military officers as presented at a Center for Ethics and the Rule of Law roundtable conference entitled Cyberwar and the Rule of Law.

The collected work, Cyber War – Law and Ethics for Virtual Conflicts, explores cyber warfare’s moral and legal issues in three categories. First, it addresses foundational questions regarding cyber attacks. What are they and what does it mean to talk about a cyber war? State sponsored cyber warriors as well as hackers employ ever more sophisticated and persistent means to penetrate government computer systems; in response, governments and industry develop more elaborate and innovative defensive systems. The book presents alternative views concerning whether the laws of war should apply, whether transnational criminal law or some other peacetime framework is more appropriate, or if there is a tipping point that enables the laws of war to be used. Secondly, this work examines the key principles of the law of war, or jus in bello, to determine how they might be applied to cyber-conflicts, in particular those of proportionality and necessity. It also investigates the distinction between civilian and combatant in this context, and studies the level of causation necessary to elicit a response, looking at the notion of a “proximate cause.” Finally, it analyzes the specific operational realities implicated by cyber warfare technology employed and deployed under existing and potential future regulatory regimes.

Here is the full Table of Contents: (more…)

The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

Trial Chamber Reiterates Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

A few months ago, I blogged about the OTP’s attempt to invoke Regulation 55 in Laurent Gbagbo’s trial. As I noted in that post, the OTP asked the Trial Chamber (TC) to consider convicting Laurent Gbagbo of various crimes against humanity on the basis of command and superior responsibility, even though the Pre-Trial Chamber (PTC) specifically refused to confirm those modes of liability because doing so “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.”

Not surprisingly, the Trial Chamber agrees with the OTP that it should keep its options open:

13. In the Request, the Prosecution demonstrates that the elements of Article 28(a) and (b) of the Statute may be derived from the facts and circumstances confirmed by the Pre-Trial Chamber. Further, in the Pre-Trial Brief, the Prosecution indicates that the evidence supporting liability under Article 28 of the Statute is encompassed by that supporting other charged modes of liability. In light of the Gbagbo Confirmation Decision, Request and Pre-Trial Brief, it appears to the Chamber that the legal characterisation of the facts and circumstances described in the charges may be subject to change to include Mr Gbagbo’s liability under Article 28(a) or (b) of the Statute.

I will not reiterate the various problems with using Regulation 55 in this manner; interested readers should see my chapter on the Regulation. But it’s worth spending a bit of time on the Trial Chamber’s decision, because it illustrates how the judges’ increasingly aggressive use of Regulation 55 has effectively consigned the confirmation hearing to irrelevance and made a mockery of the defendant’s right to a fair trial. Let’s start with this paragraph:

8. The Chamber notes that the Prosecution appears to have bypassed other statutory remedies available before making the Request. Before moving the Chamber to exercise its propria motu powers under Regulation 55(2) of the Regulations, the Prosecution could have sought (i) leave to appeal the Gbagbo Confirmation Decision or (ii) pursuant to Article 61(9) of the Statute, an amendment thereto. Notwithstanding this failure, as set out below and in the specific context of the Gbagbo Confirmation Decision, it is apparent to the Chamber that the legal characterisation of the facts described in the charges may be subject to change. In these unique circumstances, the Prosecution’s failure to exhaust other remedies does not impact on the Chamber’s obligation to give notice under Regulation 55(2) of the Regulations.

So now the OTP doesn’t even have to appeal the PTC’s confirmation decision before it asks the Trial Chamber to consider convicting the defendant on the basis of a mode of liability the PTC specifically rejected. Or, differently put, even if the PTC is correct that the OTP did not establish “substantial grounds to believe that the person committed the crime charged” on the basis of the charged mode of liability, the TC is still free to convict the defendant on the basis of that unconfirmed mode of liability as long as the OTP does better at trial. Could the irrelevance of the confirmation hearing be any clearer?

But wait, you say. The TC didn’t say the OTP never has to appeal the PTC’s confirmation decision. It said there are “unique circumstances” in this case that justify the OTP’s failure to appeal. Isn’t that important? Indeed it is — and revealingly so. Here are the so-called “unique” or “exceptional” circumstances in Gbagbo:

12. In this case, the exceptional circumstances surrounding the proposed recharacterisation must be emphasised from the outset. In particular, the Pre-Trial Chamber expressly acknowledged, on different occasions, the possibility of Mr Gbagbo’s liability under Article 28 of the Statute, a mode of liability with notably different requirements than all those in Article 25(3) of the Statute. The Pre-Trial Chamber first mentioned criminal responsibility under Article 28 of the Statue as early as the confirmation hearing, before the Prosecution included this mode of liability in its document containing the charges. Thereafter, in declining to confirm charges under Article 28 of the Statute, the majority of the Pre-Trial Chamber ‘[could] not rule out the possibility that the discussion of evidence at trial may lead to a different legal characterisation of the facts’. It found that Mr Gbagbo’s failure ‘to prevent violence or to take adequate steps to investigate and punish the authors of the crimes […] was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost’. Even the judge dissenting from the Gbagbo Confirmation Decision mentioned the possibility in this case of liability under Article 28 of the Statute, indication that she ‘could have, in principle, envisaged confirming the charges’ on that basis.

So it doesn’t matter that the PTC actually concluded that the OTP failed to present sufficient evidence to sustain command or superior responsibility. Nor does it matter that the PTC actually concluded that convicting Gbagbo as a commander or superior “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and [his] involvement therein.” No, what really matters is that the PTC thought about the possibility of confirming command or superior responsibility; that the PTC couldn’t rule out the possibility that the OTP might be able to establish Gbagbo’s command or superior responsibility at trial; and that the dissenting judge “could have… envisaged” disagreeing with the majority’s refusal to confirm command or superior responsibility. Those are the “unique” or “exceptional” circumstances making an appeal irrelevant — which are obviously not unique or exceptional at all.

The Trial Chamber’s decision means that Gbagbo will now not only have to mount a defence against five distinct modes of liability: indirect co-perpetration, ordering, soliciting, inducing, and otherwise contributing to the commission of crimes. He will also have to defend himself against the very different idea that he was responsible for subordinates’ crimes as a commander or superior. And, of course, four months have passed since the OTP asked the TC to give Gbagbo notice of the potential recharacterisation. So the TC will give Gbagbo more time to prepare his defence, right?

Silly rabbit. Of course not:

17. Moreover, the Chamber considers that the Gbagbo Defence fails to justify its alternative request for recalculation of the trial commencement date: it does not provide any concrete indication as to the impact this decision would have on its trial preparations. On the information before it, stressing that the facts and circumstances described in the charges remain unchanged and noting that the Prosecution intends to rely on the same body of evidence, the Chamber considers that the current commencement date and accompanying schedule provide adequate time for trial preparation.

According to the Trial Chamber, in other words, it requires no work at all for Gbagbo to prepare a defence against the idea that he was responsible for subordinates’ crimes on the basis of command or superior responsibility, even though the elements of those unconfirmed modes of liability are completely different than the elements of the confirmed modes. And why are those legal differences irrelevant? Because “the Prosecution intends to rely on the same body of evidence” at trial — you know, the same body of evidence the PTC concluded could not even establish “substantial grounds” to believe Gbagbo is responsible as a commander or superior.

Thus does the Trial Chamber reduce the adversarial trial to a glorified fact-finding mission — just one in which the prosecution has a high standard of proof. It would be possible to design a legal system in which the prosecution and defence were responsible for arguing about facts and the judges were responsible for deciding which crimes and modes of liability the facts were consistent with those facts. But that is not the ICC system. (Nor, for that matter, is it the common-law system or the civil-law system.) At the ICC, the prosecution does not simply prove “facts and circumstances”; it has the burden of proving every element of the charged crime(s) and the charged mode(s) of liability beyond a reasonable doubt. They don’t call it the confirmation of “charges” hearing for nothing.

Yet none of that matters to the Trial Chamber. The TC’s position is that to “avoid impunity” — ie, to avoid having to acquit a defendant simply because the prosecution couldn’t prove its case beyond a reasonable doubt — it must be able to convict the defendant on the basis of any mode that it believes the prosecution managed to establish during trial, regardless of the prosecution’s actual theory of the case or the PTC’s view of the prosecution’s evidence. Which means, of course, that the confirmation decision is nothing more than a general set of suggestions that the TC is in no way obligated to follow.

A greater perversion of the Rome Statute is difficult to imagine.

The National Security Law Journal Outdoes the Onion

by Kevin Jon Heller

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I’m not being hyperbolic. Written by someone named William C. Bradford, identified — terrifyingly —  as an “Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C,” it’s entitled “Trahison des Professeurs: The Critical Law of Armed Conflict as an Islamist Fifth Column.” (Props to the author for knowing how to use Google: the main title translates as “treason of the professors.”)

I’m not going to waste even a few seconds of my life responding to the article, which blathers on for 180 pages and nearly 800 footnotes. (Seriously.) I will just offer two quotes, almost chosen at random. In the first, the author advocates prosecuting CLOACA scholars (the “critical law of armed conflict academy” — a scatological acronym the author no doubt finds profoundly clever) for material support for terrorism. Bonus points for actually calling for a new House Un-American Activities Committee!

In concert with federal and state law enforcement agencies, Congress can investigate linkages between CLOACA and Islamism to determine “the extent, character, and objects of un-American propaganda activities in the U.S. [that] attack the . . . form of government . . . guaranteed by our Constitution.” Because CLOACA output propagandizes for the Islamist cause, CLOACA would arguably be within the jurisdiction of a renewed version of the House Un-American Activities Committee (Committee on Internal Security) charged with investigating propaganda conducive to an Islamist victory and the alteration of the U.S. form of government this victory would necessarily entail.

“Material support” includes “expert advice or assistance” in training Islamist groups to use LOAC in support of advocacy and propaganda campaigns, even where experts providing such services lack intent to further illegal Islamist activity. CLOACA scholarship reflecting aspirations for a reconfigured LOAC regime it knows or should know will redound to Islamists’ benefit, or painting the United States as engaged in an illegal war, misrepresents LOAC and makes “false claims” and uses “propaganda” in a manner that constitutes support and training prohibited by the material support statute. Culpable CLOACA members can be tried in military courts: Article 104 of the Uniform Code of Military Justice provides that “[a]ny person who . . . aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things . . . shall suffer death or . . . other punishments as a court-martial or military commission may direct;” the Rule for Court Martial 201 creates jurisdiction over any individual for an Article 104 offense.

But that’s not my favourite quote. This one is — in which the author argues that that CLOACA scholars are unlawful combatants who can be killed in their law-school offices:

CLOACA scholarship and advocacy that attenuates U.S. arms and undermines American will are PSYOPs, which are combatant acts. Consequently, if these acts are colorable as propaganda inciting others to war crimes, such acts are prosecutable. CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities. As unlawful combatants for failure to wear the distinctive insignia of a party, CLOACA propagandists are subject to coercive interrogation, trial, and imprisonment. Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars’ home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.

No, I’m not kidding. And no, the author apparently isn’t either.

I won’t tell readers to go read the article for themselves, because that would be cruel and unusual punishment. I will simply end by pointing out the most fundamental flaw in the article: namely, that it fails to note that I am a card-carrying member of CLOACA. Indeed, I’ve been advocating for radical Islam to defeat the West for years now, both here on the blog and in my scholarship. Surely I should be targeted, too!

UPDATE: The author of the article, William C. Bradford, resigned from Indiana University-Indianapolis’s law school in 2005 after it was revealed that he had lied about his military record — including falsely claiming to have won a Silver Star during Desert Storm. See this article in Inside Higher Education.