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Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land

by Deborah Pearlstein

Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing bin Laden). The most troubling sentence in Charlie Savage’s new New York Times piece on the legal theory underlying the United States’ 2011 incursion into Pakistan to kill or capture Osama bin Laden is this: “While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a ‘covert’ action, officials said.” (more…)

Constitutionality of Congressional Restrictions on Guantanamo Prisoner Transfers

by Deborah Pearlstein

Harold Koh has an interesting post over at Just Security thinking through what options would remain available to President Obama to close Guantanamo if Congress once again imposes restrictions on the transfer of prisoners off the base. Congress has imposed a range of such restrictions in annual legislation since 2009, invariably prohibiting the transfer of prisoners to the United States. As Koh notes, Congress has accomplished this on each occasion not by imposing an outright ban, but through its capacious Spending Clause power under Article I of the Constitution. Congress famously holds the purse strings for all U.S. government spending, and it has prohibited the expenditure of any funds for the purpose of such transfers. Are these restrictions an unconstitutional infringement by Congress on the President’s own powers under Article II (as Commander in Chief, etc.)? Koh stops short of answering directly, but he does say this (quoting President Obama’s recent veto statement and past signing statement):

“[M]ost likely, the President’s action would stand even if challenged, as Prosecutor-in-Chief to ‘determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests,’ and as Diplomat-in-Chief and Commander-in-Chief to decide and arrange through negotiations ‘when and where to transfer them consistent with our national security and our humane treatment policy.’”

Koh is surely right there must be some limits to Congress’ power to act through spending restrictions, as with all constitutional power; legislation will be held unconstitutional if it violates Bill of Rights prohibitions, for example. Particularly to the extent the legislative restrictions impinge on the President’s prosecutorial powers (although only to that extent – it seems clear the administration still contemplates criminally prosecuting only a fraction of the remaining detainees), the President has a constitutional case to make that the Constitution gives him, and only him, not only the power but the duty to execute the laws that are established. Koh might also have added that the weight of history, such as it is, is on the President’s side. As I’ve written in detail elsewhere, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end, and the resolution of these detentions has always been handled by the executive branch. Indeed, Congress has not imposed anything like the current restrictions on the exchange, transfer or release of prisoners, during or after the period of armed conflict in any of the previous conflicts over the past century.

Nonetheless, I remain deeply skeptical of the strength of the constitutional argument that the President has sufficient Article II power to succeed in demonstrating that the spending restrictions are an unconstitutional infringement on presidential power. (more…)

China’s Weak Legal Basis for Criticizing the US Navy’s Freedom of Navigation Operations in the South China Sea

by Julian Ku

The US Navy executed a much anticipated “freedom of navigation operation” (FONOP) today within 12 nautical miles of Subi reef, the site of one of China’s artificial islands in the South China Sea.   Predictably, China has reacted sharply to this operation by sending two Chinese destroyers to shadow the U.S. ship and planes, summoning the U.S. ambassador, and issuing angry public statements (see below).  Although it is not the main focus of their complaints, the Chinese have repeatedly described the U.S. operation as “illegal” thus highlighting the legal conflict underlying this naval showdown.

The most detailed official reaction was presented by China’s Ministry of Foreign Affairs spokesperson Lu Kang.

The USS Lassen illegally entered waters near relevant islands and reefs of China’s Nansha Islands without the permission of the Chinese government on October 27. Relevant authorities of the Chinese side monitored, followed and warned the US vessel. Relevant actions by the US naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability. The Chinese side hereby expresses strong dissatisfaction and opposition.

It is unclear exactly how the U.S. ship put personnel on the islands and reefs at risk, but in any event, the spokesperson went on to assure the world that China has, and always will, respect the freedom of navigation consistent with international law.

China’s Deputy Foreign Minister Zhang Yesui echoed these remarks, although this statement focused more on China’s “indisputable sovereignty” than on the legality of the U.S. actions.  China’s Foreign Minister Wang Yi simply warned the U.S. against “stirring up trouble.” Perhaps more seriously, China’s Defense Ministry spokesperson called the U.S. action an “abuse” of the principle of “freedom of navigation under international law” that would cause “harm” to bilateral trust and relations.

As I suggested in a previous post, the US and China might have chosen to downplay this incident by treating the U.S. naval visit as an “innocent passage” through China’s territorial seas.  But China believes even innocent passage requires its permission, and the U.S. Navy made sure that its destroyer was accompanied by naval surveillance aircraft. The inclusion of the aircraft makes it clear that the U.S. is not trying to claim an “innocent passage.” Rather, the U.S. is stating (through its actions) that it does not believe Subi reef (where the Chinese have added an artificial island) is a rock or island generating a territorial sea.  Therefore, US naval vessels should be free to conduct any activity they wish in this area.

It is interesting that at least one Chinese media outlet is claiming that there is no real conflict over international law between the two sides.  In this portrayal, China’s actions in building artificial islands is “completely legal” and the U.S. is just trying to flaunt its power by “harassing” China.  China’s legal position appears to be that it is building artificial islands on reefs that are entitled to a 12 nautical mile territorial sea.  Or, as another commentator sympathetic to China’s position has argued, because China claims every land feature in the South China Sea, even if the relevant reef is not entitled to a territorial sea, other nearby land features (also claimed by China) probably generate such rights.

In my view, the U.S. has a much stronger legal position.  Indeed, China is barely offering any serious legal defense other than repeating the words “indisputable sovereignty” repeatedly.  China is not doing itself any favors by calling US actions illegal, but failing to offer any specific criticism or explanation of its own legal position.

On the other hand, perhaps it is China’s interest to downplay the legal aspects of this dispute, and to feed the narrative that the U.S. is “provoking” a confrontation.  To some degree,this is working, as the global and Chinese media are feeding the narrative about a US-China naval showdown and ignoring the niceties of the U.S. legal position.  Indeed, if China raises the stakes by threatening some military response (as it is getting close to doing), it will be hard to convince the world (or the U.S. public) that such a conflict is worthwhile in order to vindicate an abstract legal principle like “freedom of navigation.”

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
USA

Electronic submissions must be sent to:
Lblank[at]emory.edu

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).

Reviewing Scott Shane’s New Book on Anwar Al-Awlaki

by Deborah Pearlstein

New York Times reporter Scott Shane recently published his book-length treatment of American Anwar Al-Awlaki – who he was, and what and why President Obama decided to order him targeted by drone strike in 2011. Not sure the book adds much for those who follow these things closely to what is already known from Shane’s own reporting and other sources, but it is certainly timely reading in light of the latest leaked administration documents regarding its process for drone strikes. My review of Shane’s book in the Washington Post is here. The leaked papers, published by The Intercept, are here.

Freedom of Navigation Operations and the South China Sea

by Chris Borgen

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims. Other countries have also built on various islands and reefs, positioning for their own claims. But the scope of China’s activities had brought the issue back to the forefront.

The current flurry has been about the U.S.’s reaction and, in particular, whether the U.S. will use of “freedom of navigation” (FON) operations (previously discussed by Julian, here) in the midst of all this activity in the Spratlys.

According to the BBC, Hua Chunying, a spokesperson for China’s Foreign Ministry stated:

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight.”

On Tuesday, US Defence Secretary Ash Carter expressed “strong concerns” over island-building, and defended Washington’s plans.

“Make no mistake, the United States will fly, sail and operate wherever international law allows, as we do around the world, and the South China Sea will not be an exception,” he said at a news conference with the Australian foreign and defence ministers.

“We will do that in the time and places of our choosing,” he added, according to Reuters news agency.

According to the U.S. Department of State, the U.S. has undertaken such freedom of navigation (FON) operations since 1983 to “exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention.” This is a topic where one can see the U.S. refer explicitly and repeatedly to international law:

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.

Emphases added.

A year-by-year summary of Freedom of Navigation operations by the U.S. can be found on the U.S. Department of Defense website, here.

However, the BBC notes that:

The US might have mounted sea patrols in this area, but not for several years, our analyst says – and not since China began its massive building programme in the South China Sea.

A US military plane that flew near one of the islands in May was warned off – eight times.

The US now has to decide whether to send in its ships and risk confrontation, or back down and look weak, our analyst says.

How the situation evolves from here will depend in part on the reactions of other states that border the South China Sea or use its sea lanes.  Stay tuned…

Events and Announcements: October 12, 2015

by Jessica Dorsey

Announcements

  • A student writing competition is being organized in conjunction with the annual symposium convened by the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  This year’s symposium is convened by Prof. Carli Conklin and is entitled “Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective.”  The symposium features Professor James Oldham, the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center, as keynote speaker as well as expert panelists from England and the United States. The competition is sponsored by the Center for the Study of Dispute Resolution and offers a $500 prize to the competition winner.  The author of the winning paper may be invited to publish the winning submission in the symposium issue of the Journal of Dispute Resolution, subject to the agreement of both the editors of the Journal of Dispute Resolution and the winning author. Submissions should bear some relationship to the history of dispute or conflict resolution, broadly defined.  Topics may therefore consider issues relating to the historic development of international or domestic negotiation, mediation, conciliation and/or arbitration, among other things.  There is no requirement that papers discuss U.S. law.  Papers must be received no later than 11:59 p.m., Central time, on Monday, November 9, 2015. Further information on the writing competition is available on the symposium website.

Calls for Papers/Abstracts:

  • The 2016 ESIL Research Forum will take place on Thursday 21 and Friday 22 April 2016 at Koç University Law School and the Center for Global Public Law in Istanbul. The Research Forum is a scholarly conference which promotes engagement with research in progress by members of the Society. The 2016 Research Forum calls for papers addressing the theme of the making of international law, including through interdisciplinary research and methods, and through historical, theoretical or empirical approaches. The Call for Papers is now open. The deadline for submissions is 1 November 2015.
  • The 12th ESIL Annual Conference will be held in Riga on Thursday 8 – Saturday 10 September 2016. ESIL Interest Group events will be organised, as usual, on the day before the conference, on Wednesday 7 September. The conference is hosted by the Riga Graduate School of Law in cooperation with the Latvian Constitutional Court. The theme of the conference is: How International Law Works in Times of Crisis. The Call for Papers and the Call for Posters are now open. The deadline for submissions is 31 January 2016.

Events

  • Global Law at Reading (GLAR) is delighted to unveil the programme for the inaugural Ghandhi Research Seminar Series. The series showcases the work of experts in global law fields. It is convened by Professor James A. Green, and is named in honour of Professor Sandy Ghandhi, who taught at the School of Law from 1978 to 2013. Anyone is welcome to attend these seminars, and attendance is free. However, visitors coming from outside the University of Reading are asked to please send advance notification that they will be attending: globallaw@reading.ac.uk.
  • The International Network of Genocide Scholars (INoGS) will hold its next conference in Jerusalem in June 2016. Here are links to the Call for Papers and conference website.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).

Open Letter from International Lawyers to EU States, the European Union and European Publics on the Refugee Crisis in Europe

by Başak Çalı

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity.]

It is a rare event for international lawyers to overwhelmingly agree on the content, scope and interpretation of international law. This open letter (.pdf) from 674 international lawyers and practitioners from across the globe, including leading experts in international refugee law, concerning international law obligations to those seeking refuge is one example of this. The letter emerged from a session on ‘Refugee Crisis and Europe’ that took place at the 11th Annual Conference of the European Society of International Law in Oslo on 12th September 2015. It was open for signature for just two days, from 21st September until midnight on 22nd September 2015. The letter has been sent to EU leaders ahead of their informal meeting on migration. Due to overwhelming demands from international lawyers and EU’s ongoing discussion of the issue, the letter has been re-opened for signature until 28 September 2015 Midnight CET.

The text of 22 September states:

We, the undersigned international lawyers, gathered at the European Society of International Law 11th Annual Meeting in Oslo on 12th September 2015, and other international law scholars and experts, condemn the failure to offer protection to people seeking refuge in Europe, and the lack of respect for the human rights of those seeking refuge.

In particular, we express our horror at the human rights violations being perpetrated against those seeking refuge, in particular the acts of violence, unjustified coercion and arbitrary detention.

We note that European states have obligations not only to refugees and migrants on their territories, but that international refugee law rests on international responsibility sharing. The world’s refugees are disproportionately outside Europe. We note that over nine-tenths of Syrian refugees are in five countries, Turkey, Lebanon, Jordan, Egypt and Iraq. We note that around one quarter of Lebanon’s population comprises refugees.

We note that all European states have obligations not only to refugees as defined under the 1951 Convention on the Status of Refugees, but also to those protected against return under international human rights law and customary international law. We note that this broad duty of non-refoulement protects all those at real risk of serious human rights violations if returned. They should be afforded international protection. EU Member States have further obligations under EU law.

We urge European states and the EU to alleviate the humanitarian crisis, prevent further loss of life in dangerous journeys to Europe by providing safe passage, and live up to their obligations in international and EU law.

We recall the legacy of Fridtjof Nansen, the first League of Nations High Commissioner for Refugees, and the initiator of the Nansen passport, created to facilitate the safe passage and legal migration opportunities for refugees and stateless persons.

We urge European states and the EU to:

– meet their obligations of international responsibility-sharing, to resettle significant numbers of refugees and provide aid to countries hosting large numbers of refugees.

– as regards those seeking protection in Europe, abandon those policies which prevent safe and legal access to protection. The UNHCR estimates over 2,860 people have died at sea trying to get to Europe this year alone. Suspending carrier sanctions and issuing humanitarian visas would largely prevent the need for those seeking refuge to make dangerous journeys.

– respect and protect the human rights of those seeking refuge once they are in Europe, including by enabling them to access asylum procedures or ensuring safe passage to countries where they wish to seek international protection.

– immediately suspend Dublin returns of asylum-seekers to their first point of entry, but ensure that its rules on family reunification are implemented fully and swiftly.

– relocate asylum-seekers and refugees in a manner that respects the dignity and agency of those relocated, and increases Europe’s capacity to offer protection.

– replace the Dublin System with one which accords with international human rights law and respects the dignity and autonomy of asylum-seekers, and supports international and intra-European responsibility-sharing.

– implement fair and swift procedures to recognize all those in need of international protection.

– while claims are being examined, afford those in need of international protection, at a minimum, the reception conditions to which they are entitled in international human rights and EU law.

– respect the right to family life, including positive obligations with regard to family unity, facilitation of swift family reunification and family tracing.

– treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status.

For the current list of signatures, please see this page.

Book Symposium: Cyber War and the Question of Causation

by Jens David Ohlin

Thanks to Kevin Govern and Duncan Hollis for providing the two previous posts (here and here) in this book symposium on Cyber War: Law and Ethics for Virtual Conflicts.

In my post, I want to explore the difficulties arising from causal investigations in cyber attacks.

Everyone knows that the increasing threat of cyber attacks will place immense pressure on the operational capacities for various intelligence and defense agencies. Speak with anyone in military operations (from several countries), and their lists of security concerns are remarkably similar: Russia, ISIS, and cyber (in no particular order). What is more controversial is whether the current legal regime regarding jus ad bellum and jus in bello is sufficient to adequately regulate cyber-attacks and cyberwar, or whether new legal norms should be developed to specifically address these issues.

My own view, which is the focus of my chapter on Cyber-Causation, is that there is insufficient clarity right now regarding the required causal connection between a cyber attack and its kinetic consequences, especially with regard to what counts as an armed attack for purposes of triggering the right to self-defense under Article 51, and what counts as an attack for purposes of jus in bello. I argue that the lacuna is not terribly surprising since the law of war has generally avoided issues of causation because, unlike tort and criminal law, issues of causation are usually (with some notable exceptions) fairly uncontroversial in wartime. Cyber might change that.

Let me explain in greater depth why I think that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of the law of war. If you drop a bomb on a village, the results are fairly obvious. The one area (or one of the few) where causation is controversial is dual-use infrastructure targets that have some relationship to both civilian and military operations. Under the law of war, a target is only a permissible military target if, among other things, its destruction will make an effective contribution to the military campaign.

According to Article 52(2) of Additional Protocol I:

attacks shall be limited strictly to military objectives. Insofar as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

The problem is that destroying almost any civilian target will create some military advantage, if only because it might demoralize the civilian population and spur them to pressure their civilian leaders to sue for peace. But that is clearly overbroad. The difference between permissible and impermissible attacks has to do, in part, with the nature of the causal connection between the attack and the military advantage that it confers. Something about the causal relationship between the terror-killing of non-combatants and the resulting military advantage is impermissible and dangerous. So that is one area where IHL needs a good account of causation. But I think this is a rare case.

I believe that cyber-attack scenarios will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I place less emphasis on which account of causation is abstractly correct and instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). The Tallinn Manual was an excellent start to this process, but I also encourage scholars of causation in other fields to join the conversation.

One reason why this question is so difficult to answer is that traditional theories of causation cannot be reflexively and uncritically grafted into the law of war. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. George Fletcher (in Rethinking Criminal Law) famously distinguished between the pattern of subjective criminality and the pattern of manifest criminality. While the former is appropriate for the criminal law’s extensive fact-finding system, IHL is burdened by the lack of fact-finding resources, and must necessarily rely on the pattern of manifest criminality. Of course, there are international tribunals to adjudicate violations of IHL that constitute war crimes, but let’s remember: (i) only the worst violations of IHL will be adjudicated at an international tribunal; and more importantly (ii) tribunal adjudications are always ex post, never contemporaneous decisions within the moment. The law of war needs a theory of causation that allows all participants to clearly and quickly evaluate the legality of the conduct without needing a courtroom and a fact-finder to make complex factual (and even normative) assessments that may take months to finalize.

Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.

If these issues interest you, feel free to check out the rest of the book here.

Book Symposium: Cyber War – A Duty to Hack and the Boundaries of Analogical Reasoning

by Duncan Hollis

Back in 2012, I was pleased to receive an invitation to a conference that Jens, Kevin Govern, and Claire Finkelstein were hosting on the law and ethics of cyberwar.  It was a great conversation; so great, in fact, that Jens and his colleagues were inspired to use it as the launching pad for this volume — Cyberwar: Law and Ethics for Virtual Conflicts.  They asked me to write a chapter on an idea I’d had been thinking about since my first foray into the cyber arena back in 2007 — whether and when IHL (international humanitarian law, or the law of armed conflict for those of you trained in the United States) might involve a duty to hack?  The basic idea was straightforward — if a cyber-operation could achieve a military objective (say disabling a power grid or a war-supporting factory’s operations) without killing anyone or causing any lasting damage to the facility, shouldn’t IHL require States to employ it in lieu of kinetic operations that might cause civilian casualties or property damage?

Looking at the law today, the answer to this question is (largely) a negative one. Certainly, IHL contains a requirement for States to take precautionary measures (see Additional Protocol I, Art. 57) such as (i) choosing a means and method of warfare that minimizes ‘incidental loss of civilian life, injury to civilians, and damage to civilian objects’ and (ii) selecting military objectives ‘expected to cause the least danger to civilian lives and to civilian objects’ in cases where ‘a choice is possible between several military objectives for obtaining a similar military advantage.’  And these requirements could require a cyber-operation over a kinetic one in specific cases akin to the arguments for using available precision weaponry.  But, there’s nothing in IHL that has ever said States have to use a particular type of weapon first, as my duty to hack might suggest.

More importantly, some cyber-operations might not even fall within IHL’s current ambit.  Although there’s continuing debate, the majority view is that IHL’s principles of precaution, discrimination, and proportionality only apply in cases of an “attack.”  IHL does not prohibit targeting or even harming civilians or civilian objects in a cyber-operation so long as the effects are not analogous to those previously crossing the attack threshold (i.e., those with violent consequences involving injury, death, destruction or damage). The scope of IHL’s precautions are similarly qualified; where a cyber operation does not qualify as an attack (i.e., it doesn’t physically damage anything), it does not need to be among the range of options military planners are required to consider in deciding what and how to attack.  IHL thus appears to authorize attacks – kinetic or otherwise – that cause physical damage and loss or injury of human life so long as they compare favorably to potential losses from other types of ‘attacks’ even if the same objective could be achieved without any attack at all.  That result may be incongruous with the humanity values that motivate much of IHL, but it represents the law as it stands today.

My chapter, therefore, undertakes a normative argument for a Duty to Hack, recognizing that the idea is clearly lex ferenda.  I argue that IHL should require states to use cyber-operations in their military operations when they are expected to be the least harmful means available for achieving military objectives. This duty departs from the current law in two key respects.  First, it would remove the “attack” threshold for precautionary measures since the novel and wide-ranging capacities of cyber-operations unsettle the idea that only attacks can achieve military objectives.  A cyber-operation may be able to achieve a military objective (e.g., shutting down a factory for some desired period of time) without causing any physical harm.  Rather than leave such cyber-operations outside the requirements of precaution because they do not meet the definition of an ‘attack’, a Duty to Hack would require that they be part of any choice in means, methods and objectives.  A cyber-operation that can achieve a particular military objective without an attack should be required in lieu of any ‘attack’ on that same objective by other means or methods, whether cyber, kinetic, or non-kinetic in nature.  In other words, so long as the military objective is achievable (and nothing in my idea would require hacking if it can’t achieve lawful military objectives), the Duty to Hack requires employing cyber-operations generating no physical harm over those means and methods of warfare that, by definition, must generate some physical harm (similarly, it would prioritize cases involving some harm in comparison to means and methods that would generate more harm).

Second, the Duty to Hack would addresses all forms of physical harm from cyber-operations, not just those of a civilian character. Existing IHL – distinction, proportionality, and precautions – only require efforts to avoid, limit, or minimize civilian harm. Absent the harmful civilian impacts protected by these and other IHL rules, militaries are free to employ destructive and lethal force against military objects and belligerents.  This approach furthers military necessity – complete submission of the enemy as soon as possible – and made sense where military objectives were usually military in character and dual-use objects qualified as military objects only on occasion. But, as is well known, information communication technologies are regularly dual-use (that is, they are used by both civilian and military actors).  I question whether this default treatment of dual-use objects as military objects should continue where all these cyber-related dual-use objects may be attacked (and damaged or destroyed) without regard to any questions of distinction, proportionality or precautions vis-à-vis the objects themselves.  Of course, one solution would be to require more careful segregation of military objects in cases where they are situated within or among civilian objects. My Duty to Hack, however, takes a different, and simpler, approach.  It would require using cyber-operations that cause the least harm to achieve a military objective in military operations. For example, assuming disruption of Iran’s nuclear processing plant was a lawful military objective, the prospect of deploying Stuxnet to achieve that objective would take priority over doing so by an airstrike if that airstrike – even a precise one – would foreseeably involve greater risks of injury, death, damage or destruction than spinning centrifuges out of control periodically.

Ultimately, my Duty to Hack idea is designed to preserve the principles of distinction and proportionality; IHL would continue to prohibit direct attacks on civilians and their objects by cyber-operations or otherwise, just as any military operation that does constitute an attack must not generate excessive civilian harm.  Nor would my Duty to Hack override the requirement to comply with the principles of discrimination and avoidance of unnecessary suffering when it comes to developing or deploying cyber-operations.

My chapter offers a longer examination of the Duty to Hack concept than space permits here (including a discussion of how it differs from the “duty to capture” concept that has caused much controversy in IHL circles).  I explore the trade offs involved in adopting it (including the potential for it to incentivize greater military cyber surveillance to solidify the reliability of various cyber capabilities).  In doing this analysis, however, I was struck by the larger challenges of using analogies to carve out the existing lines of IHL in cyberspace (not to mention the contours of any new lines that I propose). As a result, I ended up framing my chapter around a larger, introductory analysis of the role of boundaries in legal discourse over cyberspace.

Readers may be familiar with debates over whether cyberspace is subject to physical, territorial boundaries, most notable in on-going debates about which governance models best serve cyberspace (the traditional sovereign territorial model, a multistakeholder model where cyberspace is a res communis, or some sort of hybrid approach).  But, I notice similar sorts of conceptual boundary disputes in questions over what rules of international law apply in cyberspace, with much of the existing analyses resting on analogies to pre-existing regulatory regimes.  I find this “law-by-analogy” approach problematic, particularly when it comes to IHL and rules on the use of force. My chapter explains the problems such line-drawing poses in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness.  Law-by-analogy works well where analogies hold (i.e., defining a use of force in cyberspace where the effects of a cyber operation analogize to the effects of prior activities treated as uses of force in the past; or, defining a non-use of force where the effects analogize to activities not treated as uses of force in the past).  But analogies break down where the technology includes previously-unseen capacities, which have no prior analogues.  In such cases, default presumptions may simply regard the behavoir as automatically prohibited or permitted in ways that create tensions with the law’s underlying nature and purpose.  For example, I find it problematic that cyber-operations do not qualify as attacks simply because they do not involve violent consequence even if they can achieve the very same military objective as an attack.  My Duty to Hack idea serves as a response to such difficulties by thinking more carefully about the rules for cyber operations and the values they serve when there are no analogues to earlier operations defined as attacks.

In the end, I had two overarching goals for this chapter.  First, I wanted to highlight the role of boundaries in governing cyberspace, and problematize the reasoning it generates as a result, particularly when done under the heading of law-by-analogy.  Second, I offer a critique of how existing boundaries operate with respect to contrasting cyber operations with other forms of attack, leading me to call for IHL to include a Duty to Hack.  Although such a duty would not come without costs, I believe it would more accurately and effectively account for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. It could, moreover, offer a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

Interested in more?  You could always buy the book.

How Broad is the UN’s Immunity? More on The Haiti Cholera Case

by Kristen Boon

If you haven’t seen it yet, the US recently filed its amicus brief in the Haiti Cholera appeal – it is available here: Haiti US amicus 2nd Circ. Predictably, the brief makes the case for absolute external UN immunity, and advances largely the same arguments put forward in prior filings.

And yet, there are a number of powerful counterarguments to the position put forward by the US government.

  • At the time the Convention on Privileges and Immunities of the UN (CPIUN) was drafted, the whole field of privileges and immunities of IOs was largely “uncharted territory,” and founding States projected what immunities they thought the UN would need with little information from practice;
  • The legislative history of the CPIUN confirms that the biggest fear of UN founding states was the threat of a member state trying to control the UN, not classes of private plaintiffs bringing torts cases against the Organization;
  • Article 105 of the UN Charter limits the Organization’s immunities before national courts to what are functionally necessary, and under Article 103, the Charter trumps conflicting treaties, arguably including the broader language of the CPIUN.
  • Although settling claims might place a considerable financial burden on the Organization, the UN could purchase liability insurance to cover itself against large claims;
  • The concern that Troop Contributing Countries will be deterred from cooperating with the UN if it has anything less than absolute immunity has no empirical support. In fact, what appears to be of far more concern to TCCs is the expansion of “robust” peacekeeping missions in which peacekeepers have an offensive mandate.

As a result, although the UN’s external immunities are clearly very broad, there is a very strong argument they are not absolute.  These arguments are advanced in my forthcoming article on the Haiti Cholera case (see bottom of post for more information).

In another important development, earlier this year the UN attempted to redefine the scope of its internal immunities, under Art. 29 of the CPIUN.

In a February 19, 2015 letter to Members of Congress, the Secretary General wrote:

“In the practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between private parties, such as, claims arising under contracts, claims relating to the use of private property in peacekeeping contexts or claims arising from motor vehicle accidents. . . . The claims in question were not receivable pursuant to Section 29 of the General Convention [as they] raised broad issues of policy that arose out of the functions of the United Nations as an international organization, they could not form the basis of a claim of a private law character [….] For the same reason, it was determined that these claims were not of the type for which a claims commission is provided under the SOFA, since the relevant provision of the SOFA also relates to claims of a private law character.”

A November 2014 letter from the UN’s Senior Cholera Coordinator to several Human Rights Special Rapporteurs reinforces the UN’s restrictive new interpretation of private law claims:

In the Practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between two private parties. Section 29(a) has most frequently been applied to claims arising under contracts between the United Nations and a private party, to those relating to the use of property in the context of a mission away from Headquarters, and to claims arising from vehicle accidents.

What is striking about these letters is that torts—other than those arising from motor vehicle accidents—have been eliminated from the scope of the UN’s duty to compensate for private injury.  In prior documents, the UN had included identified two much broader types of private law claims: commercial agreements that the UN has entered into, and claims by third parties for personal injury, death or property loss or damage, specifically as caused by actions of UN peacekeepers.           This recent categorical elimination of torts other than those arising from motor vehicle accidents is significant: injuries are predictable aspects of any peacekeeping operation, and they should not be designated as public simply because they affect the UN’s potential liability.

In parallel, the Secretary General suggested an enlarged category of public law claims for which the UN would be internally immune. The 2014 letter to the Human Rights Special Rapporteurs on the Haiti case states:

“Claims under Section 29(a) are distinct from public law claims, which are understood as claims that would arise between an individual and a public authority such as a State.” The letter goes to suggest that “on the international level, these claims may be addressed in various ways, such as through political, diplomatic or other means, including a body established for that specific purpose.”

For the full text click here:  Haiti Nov14 explanation to SRs

This wording is deeply troubling in that it largely eliminates the UN’s duty towards third-parties, despite the recognition in General Assembly resolution 52/547 that such duties exist.  In my article, I take issue with the UN’s attempt to redefine the scope of its internal immunities, and argue that member states should join the conversation about what immunities mean to the UN today.

For an early copy of “The United Nations as Good Samaritan: Immunity and Responsibility” forthcoming in the Chicago Journal of International Law (2015) please contact me at kristen [dot] boon [at] shu [dot] edu.