It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello…

Ben Emmerson, counsel for al-Senussi, has asked the Pre-Trial Chamber to refer Libya to the Security Council for ignoring its February 6 decision ordering Libya to transfer al-Senussi to the Court. Here are the key paragraphs:

3. It has been almost six weeks since the Chamber‟s Order of 6 February, and Libya has failed to comply with every one of these instructions. Libya has failed to make any attempt to transfer Mr. Al-Senussi to the ICC and continues to detain him in Libya in violation of Security Council Resolution 1970 and the orders and requests of the ICC. Libya has ignored a formal request from the Registry to send representatives to The Hague to make arrangements to facilitate Mr. Al-Senussi‟s transfer and has not taken any other action to arrange his surrender.

4. Instead, the Libyan authorities continue to detain Mr. Al-Senussi, and are actively preparing to commence his trial in Libya as soon as possible. In so doing Libya has also violated the injunction contained within the Chamber‟s 6 February Order to the effect that Libya must refrain from any action which could hinder or delay his immediate transfer to the ICC.

5. Libya has also ignored the third order made by the Chamber requiring arrangements to be made for a privileged legal visit by appointed Defence Counsel. Mr. Al-Senussi has now spent six months in detention in Libya (from September 2012 to date) being questioned about criminal allegations without access to counsel. This in itself makes any claims regarding the fairness of proceedings in Libya untenable.

[snip]

8. This case has reached a point at which the impasse between Libya and the ICC can only be broken by a referral to the Security Council. If the authority of the Court is to be respected, its orders and requests must be complied with. Further latitude would simply enable Libya to perpetuate its tactics of delay, obfuscation and prevarication and its consistent attempts to mislead the Chamber and the Registry as to its true intentions. Libya’s intentions and actions are very clear.

None of this is remotely surprising, of course. But it puts the lie to Libya’s constant claims in Saif’s case to be cooperating fully with the Court. Libya only cooperates when it gets what it wants.

I got my first taste of international law some 25 years ago when I joined my high school’s model UN team.  So, what does it says that today’s high school students have model cyberwar teams?  The link’s a bit short on details, but, I wonder whether they have a student playing the lawyer on each team?  I’d imagine any cyberwar scenario must trigger serious legal questions (e.g., the rules for active defense, distinction, and proportionality). Still, I’m guessing the answer is “no”.  Indeed, I’d bet the cyberwar gaming model has yet to integrate legal rules let alone norm entrepreneurs to advocate for them.  Readers with more info are welcome to weigh in.

Hat Tip:  Eugene Hsue

A couple of weeks ago, I noted that the Pre-Trial Chamber had ordered Libya to return the documents it wrongfully seized from Melinda Taylor during her privileged meeting with Saif Gaddafi. I also predicted that Libya would try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision.

Guess what? Libya has filed two motions in response, one asking for leave to appeal and the other asking the Pre-Trial Chamber to reconsider its decision. The arguments are the same in both motions, and the reconsideration motion doesn’t even cite any legal basis — in the Rome Statute, in the Rules of Procedure and Evidence, or in ICC jurisprudence — for being able to request the Pre-Trial Chamber to reconsider its decision. The leave for appeal motion at least points to Art. 82(1)(d) of the Rome Statute — but as the OPCD points out in its response, that provision permits only the Prosecution and Defence (“Either Party”) to seek interlocutory review of a Pre-Trial Chamber decision.

Moreover, even if the Pre-Trial Chamber erroneously allows Libya to invoke Art. 82(1)(d), that provision only permits interlocutory review of “[a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Whether the documents were wrongly seized has nothing to do with the fairness or expeditiousness of Libya’s admissibility challenge; they are relevant only to Libya’s prosecution of Saif in Zintan for allegedly violating national security and trying to escape custody, charges that — as Libya itself has admitted in the past — do not involve the “same conduct” that is at issue in the ICC proceedings. The OPCD makes the point well in its response:

68. When stripped of its indignation and rhetoric, it is quite clear that the current Request actually bears no relation to the Impugned Decision, but is simply a last ditch stalling tactic by the Govemment in order to obtain more time for its admissibility challenge. However, in light of the fact that the Impugned Decision only concems the discrete question as to the Government’s obligation to retum these documents and destroy any copies, even if the Appeals Chamber were to grant suspensive effect of the Impugned Decision, this would have absolutely no impact on the pending admissibility proceedings. Appellate review would therefore fail to advance admissibility proceedings, which are already at a very advanced stage.

Once again, let me express my hope that the Pre-Trial Chamber will resolve Libya’s admissibility challenge sooner rather than later. Each time it permits Libya to engage in these kind of stall tactics, the ICC loses a bit more credibility.

This according to a bizarre — and bizarrely inaccurate — article in the Jerusalem Post. How many errors can you find?

An Israeli law firm on Thursday formally announced its request to the prosecutor of the International Criminal Court, Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority President Mahmoud Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression.

[snip]

After years of public threats by the PA to file such a request or case against Israeli soldiers and political leaders, an Israeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation.

The request is unprecedented not only because it involves the Israeli-Palestinian conflict and is against “Palestine” as a state and its leaders such as Abbas and nine Hamas members, but also because it is filed by an individual law firm as opposed to by a state.

Generally speaking, the ICC can only hear cases filed by states.

However, as the Tzivin wrote in his request to Bensada, the ICC prosecutor has a little known and almost entirely unused power to essentially self-open an investigation and self-file an indictment against individuals for international law violations.

The power, referred to as the prosecutor’s “propio motu” power, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecutor’s office exposed for using an extraordinary measure not requested by any state.

[snip]

Asked whether he had coordinated his move with Israeli officials, Tzivin said he had spoken with top legal officials in all of the key ministries as well as a top official in the security establishment.

Despite Israel’s official position that there is still no state of Palestine, Tzivin said that he was either told that he had their blessing or that at least no one told him to hold back.

Here’s my count: (1) the ICC does not yet have jurisdiction over the crime of aggression; (2) there is nothing remotely unprecedented about a private individual asking the Court to investigate a situation; (3) it is not true that, “generally speaking,” the Court can hear only cases brought by states; and (4) the Prosecutor’s proprio motu power is not remotely “almost entirely unused” (Kenya, Cote D’Ivoire?).

Did I miss any?

Ken noted last week that Lawfare has been hosting an ongoing debate over Ryan Goodman’s fascinating new article ”The Power to Kill or Capture Enemy Combatants,” which is forthcoming in the European Journal of International Law. I contributed a long post criticizing Goodman’s claim that Art. 35(2) of the First Additional Protocol — which provides that “[i]t is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” — supports the existence of a duty to capture instead of kill. Goodman has now responded with a long post of his own in which he claims that my post is “riddled with errors.”

I don’t have time to recapitulate the entire debate; interested readers should head to Lawfare. (Bobby Chesney’s introduction to Goodman’s most recent response contains links to all of the contributions.) I also don’t have time to respond to all of my supposed errors. Instead, in this post, I simply want to address three of Goodman’s most problematic claims, all of which are based on selective quotation of the historical sources he uses to build his argument.

Goodman’s first problematic claim is that an article by Henri Meyrowitz supports his reading of Art. 35(2). Here is what he says in his response to my Lawfare post (emphasis mine)…

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:

As part of my new research interest in China and its relationship with the international legal system, I opened a Sina Weibo account a couple of weeks ago. And it has been quite an adventure.

Weibo is China’s version of Twitter and Facebook.  Since both Twitter and Facebook are blocked within China, Weibo is the main social media platform for users within China.  And use it they do.  Although the data is somewhat unreliable, it is estimated Weibo has nearly 500 million registered users (that’s not a typo).  As a point of comparison, Twitter has about 175 million registered users worldwide and Facebook has about 1 billion.  There are some questions about whether many of the registered Weibo users are spam bots, but there is no question that Weibo has an enormous usage within China.

What fascinates me about Weibo is that it seems to facilitate more interaction and discussion of public affairs within China than most Chinese media organs do.  Perhaps realizing this, the United Nations has opened an extremely active Weibo account.  The UN Weibo has a mere…3.5 million followers (UN Twitter has “only” 1.3 million followers).  Even accounting for zombie bots, that’s a lot of followers in just one country.

And even better than the number of followers it the discussion the UN has used Weibo to facilitate  discussions of interesting and even sensitive international subjects.  For instance, today, the UN account posted a link to an address by Chinese representative Liu Zhenmin  to the UN Human Rights Council.  In that address, the Chinese delegate appeared to give China’s standard party-line against countries using “human rights” as an excuse to interfere in nation’s domestic affairs and to advance political agendas.  That posting drew hundreds of often tart comments from Chinese Weibo users. Many were critical of their own delegate:   “He does not speak for me,” said one commenter simply.  ”What about [Liu Xiaobo] sentenced to prison for 12 years?” said another.  Or another simply quoted the line : “We know they are lying, and they know we know they are lying, and we know they know we know they are lying…”  So kudos to the UN folks running their Weibo account.  And could some of them shift over to running their Twitter account?

Of course, not all is rosy for intellectual and expressive freedom in China’s social media.  When, for instance, I tried to post a link to my Opinio Juris post earlier this week about calls within China to ratify the International Covenant on Civil and Political Rights, I received a message from Weibo explaining that my post had been deleted.  As I later learned, many (but not all) posts about China ratifying the ICCPR had been deleted at the behest of the ever-present Chinese censors.  Which is ironic because my post actually was skeptical about the value of ratifying the ICCPR.

If it weren’t for those pesky censors (and my still sketchy Chinese writing skills), I actually would prefer Weibo to Twitter or Facebook.  It’s easier to use, and has more amusing emoticons :-D (Although I do wonder why Weibo asks me to list my blood type when registering). China seems to have the best of both worlds: a first class social media platform, and the power to control its usage when it seems to touch on sensitive subjects.  I wonder if this is sustainable, but it sure looks pretty strong so far.

I have just posted on SSRN my latest article published in the Ohio State Law Journal. Through the lens of the broken windows theory of community policing, the Article examines the connection between corruption and other social goods in society, as well as the relationship between U.S. enforcement efforts and those of other OECD countries.

It is incredible how much empirical research has been done on international corruption in other disciplines, and yet the legal community largely ignores this data. It’s also incredible how rare it is for social science empiricists to make policy arguments that flow from their research. The Article tries to bring these two worlds together by digesting the mountain of empirical evidence regarding international corruption, and then making specific policy recommendations. Here’s the abstract:

The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.

Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.

Part III of the Article illuminates how corruption is associated with other matters of grave public concern, such that the struggle against corruption is the struggle to promote a variety of public benefits. Corruption is inextricably linked to many other public concerns. Empirical evidence finds a positive relationship between a country’s corruption ranking and its ranking on other major indices measuring public welfare. Communities that are perceived to take corruption seriously score well on their commitment to other social goods, such as global competitiveness and productivity, increased standards of living, enhanced children’s health, protection of civil liberties, and the safeguarding of political freedom. These corruption correlations provide an evocative snapshot of the connection between corruption and social order.

Part IV of the Article analyzes the legal efforts to combat corruption, with particular focus on the utility of cooperative efforts to regulate and prosecute corruption. Empirical studies show that coordination strategies between OECD enforcement authorities alter the behavior of corporations, foreign officials requesting bribes, and government officials prosecuting the payment of bribes.

Part V of the Article discusses how these findings have important implications when considered from the perspective of a “broken windows” theory of international corruption. How would a broken windows theory of corruption alter the legal landscape of anti-bribery laws? I offer three suggestions. First, a broken windows approach would redefine and reframe corruption as distrust and disorder. Conceptualizing corruption as a matter of public trust heightens its importance. Public trust is essential to the rule of law. Second, a broken windows approach would augment the battle against corruption with a greater emphasis on petty bribery. Thus far the legal enforcement strategies have focused on high-profile, large-scale corruption. A broken windows strategy would not ignore those cases, but would also focus on low-profile, petty corruption that alters quality of life and undermines public trust. Third, a broken windows theory would place greater emphasis on a partnership between the public and private sectors to combat corruption. This approach would mean that corruption should be considered in the local context, with a focus on its destabilizing effects in specific countries and communities.

Some leading Chinese scholars and prominent Chinese activists have been circulating a letter on Chinese social media calling for the National People’s Congress (China’s legislature) to ratify the International Covenant on Civil and Political Rights (ICCPR).   Here is an excerpt from the letter, which is carefully worded not to challenge the authority or the accomplishments of the current government.

2. Immediate ratification of the International Covenant on Civil and Political Rights will honor the solemn pledge of the Chinese government, satisfy the fondest hopes of the Chinese people, and demonstrate China’s commitment to be a responsible world power.

When the United Nations passed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966, it called on all nations to see both treaties as part of a whole, signing and ratifying both together. As of November 1, 2010, 167 of the 193 United Nations member countries had formally joined the International Covenant on Civil and Political Rights. In 2001, China ratified the International Covenant on Economic, Social and Cultural Rights, which has been referred to as the “second generation of human rights.” But today, 15 years after our country signed the International Covenant on Civil and Political Rights in 1998, it has still not ratified this treaty, which is regarded as the “first generation of human rights.” China’s government has placed its emphasis on the gradual improvement of China’s existing legal system in advance of ratification, so that it can accommodate the demands and various responsibilities of the treaty. However, the gap between the signing of human rights treaties and their ratification must still be kept within the realm of reason, in order to promote further progress on civil rights and political rights, and in order to avoid unnecessary conjecture from the international community.

As a Permanent Member of the United Nations Security Council, China has always been an active initiator and participant in the International Bill of Human Rights. China’s government played an important role in the formulation of the Universal Declaration of Human Rights (UDHR). International human rights standards are therefore not imported products but in fact include the achievements of Chinese culture and the Chinese people. The signing of the International Covenant on Civil and Political Rights 15 years ago demonstrated even more our country’s serious commitment to the protection of basic human rights as a responsible world power. Afterwards, both President Hu Jintao and Premier Wen Jiabao said openly on numerous occasions both at home and overseas that China would immediately take the legal steps to ratify the treaty once the conditions were right. In the beginning of 2008, more than 10,000 Chinese citizens signed a call for the ratification of the International Covenant on Civil and Political Rights. And so there is no longer any need to vacillate. In order to adapt to trends in human rights development, live up to our government’s pledges and answer the demands of the people, in order to behave in a manner consistent with a major power, we must join the treaty without hesitation, with a positive and decisive attitude.

As stirring as this letter is, I am doubtful that China’s adherence, or non-adherence to the ICCPR would make a big difference in advancing reform within China.  China is already a party to key human rights treaties, such as the Convention Against Torture and the Convention Against Genocide, but it is hard to tell whether being party to those treaties has made a big policy difference within China.  Moreover, the Chinese Constitution already guarantees many of the key rights in the ICCPR, but those rights are still rarely protected in China, and not all protected under Chinese law.

The larger question for international lawyers is whether human rights covenants like the ICCPR can or should be a vehicle for advancing a domestic political reform agenda.  I haven’t thought about this question enough, but I am skeptical that such treaties can play a big role and I’ve seen no empirical data that suggests it does make a difference one way or the other. (If I’m missing something, please feel free to post below). Indeed, such treaties can often be counterproductive to domestic reformers who lose some credibility by being too closely associated with foreign and international powers.

Don’t get me wrong. I’m all for advancing human rights and political reform within China. I just have doubts as to whether international human rights law is a useful vehicle for advancing this agenda.

If you’re interested, I’ll be on C-SPAN Book TV tomorrow, Sunday, February 24, at 1:20 pm, talking about my book, Living With the UN: American Responsibilities and International Order. It runs about half an hour, and though I have no idea whether I’m especially interesting on the program, I very much enjoyed doing it – I thought the interviewer was terrific and asked excellent questions. (Plus, he let me talk pretty much as long as I liked.)