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US Diplomacy and National Security

The Case That Won’t Die: U.S. Court Revives South Africa Apartheid Alien Tort Statute Lawsuit

by Julian Ku

So maybe the use of the Alien Tort Statute against corporations for overseas activities isn’t fully dead. Yesterday, the U.S. District Court for the Southern District of New York has revived In re South Africa Apartheid Litigation, a twelve-year-old litigation that just won’t die. A copy of the opinion can be found here.

Most of the opinion deals with whether a corporation may be sued under the Alien Tort Statute, an issue most thought was settled within the Second Circuit (the federal appeals circuit that includes New York). As a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS.  The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability.  That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate presence” as being insufficient to overcome the statutory presumption against extraterritoriality.  This language, and the Supreme Court’s decision not to otherwise mention the corporate liability issue, was enough for Judge Scheindlin to revisit the corporate liability issue.  I don’t really buy this sub silentio interpretation of Kiobel, but to give credit where credit is due, this argument was previewed in our Kiobel insta-symposium by Jordan Wells, a third year law student.  Let’s just say Judge Scheindlin really went out of her way to re-open this question.  

My views on the corporate liability issue haven’t changed since I published my full length attack on it back in 2010.  In my view, the Supreme Court’s decision in Mohamad v. Palestinian Authority, finding that the Torture Victim Protection Act does not allow torture claims against corporate defendants, provides an unappreciated boost to the policy rationale for limiting these kinds of lawsuits to natural persons.  But other circuits, and apparently Judge Scheindlin, refuse to agree with me (I know, I know, it’s hard to believe, but it’s true).

Putting aside the corporate liability issue, it is perhaps more surprising that Judge Scheindlin did not simply dismiss all of the defendants on Kiobel extraterritoriality grounds.  The Second Circuit appeals panel in this case held that all of the defendants (U.S. and foreign) should be dismissed because all of the alleged relevant conduct occurred in South Africa.  The U.S. corporate defendants (Ford and IBM) did not overcome the Kiobel presumption because the complaints only allege vicarious liability as parent corporations to their South African subsidiaries.   Yet Judge Scheindlin only dismissed the foreign defendants and will allow the plaintiffs to re-file their complaints against the US defendants to overcome the new Kiobel extraterritoriality presumption.  This means that she is willing to explore in greater detail the Kiobel requirement that plaintiffs’ claims “touch and concern” the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality.  Will knowledge by the US parent of the subsidiaries’ activities in South Africa be enough? Will receiving profits from the subsidiaries be enough? I assume that is the best the plaintiffs will be able to plead is knowledge by the U.S. parent.

I assume this is going back to the appeals panel in this case, and we should expect some rather testy reactions. Judge Jose Cabranes (the author of the appeals court panel decision) and Judge Scheindlin have recently tangled over a local NY case against aggressive police tactics resulting in the controversial removal of Judge Scheindlin from that case (Judge Cabranes was one of three judges involved in that removal order).  This latest Scheindlin order seems a double-insult at Judge Cabranes.  It “reverses” his earlier Kiobel decision on corporate liability (from a lower court no less!), and then it ignores his subsequent opinion holding that all defendants should be dismissed via a motion for judgment on the pleadings.   A little tension brewing at 40 Foley Square, perhaps?

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.

Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Did the U.S. Infiltration of Chinese Company Huawei Violate International Law?

by Julian Ku

Just in time for Michelle Obama’s speech in Beijing extolling the benefits of free speech and a President Obama/President Xi summit, the NY Times published an article detailing how the U.S National Security Agency infiltrated the systems of Chinese telecom infrastructure giant Huawei.  According to documents the Times obtained from the Edward Snowden leak, the NSA “obtained information about the workings of the giant routers and complex digital switches that Huawei boasts connect a third of the world’s population, and monitored communications of the company’s top executives.”

From a legal perspective, there is no doubt that this is a violation of Chinese laws and an example of how the U.S. government is doing what it is alleging the Chinese government is doing to U.S. companies. There also seems little doubt that this action is clearly legal under U.S. laws, as the U.S. government has broad and largely unchecked authority to conduct surveillance of foreign nationals in foreign countries.  But is the action illegal under any international laws?

I am doubtful that such snooping could violate any international right to privacy, even if such a right existed.  The ICCPR might provide such a right, but it may or may not apply extraterritorially, and even if it did, it probably doesn’t restrict this kind of activity.

This essay in the Global Times, a hawkish Chinese-state-affiliated newspaper, suggests that such activity could also constitute an attack for the purposes of the law of war.  The author, a U.S.-based writer, argues that “launching attacks under another nation’s flag has long been seen as illegal under both codified law and international custom. In such a case, Chinese nationals would face financial and possibly physical risk, especially if US involvement remained undetected.”

I think this would be a stretch under the laws of war. Is snooping around in Huawei’s servers an “act of violence” within the meaning of the Geneva Convention? I don’t think walking into Huawei’s offices and ruffling through their papers is an act of violence. Taking down their servers, or planting viruses to disable those servers or related activities might be an act of violence, but even that seems a bit of  stretch under current international laws.

So the U.S. may have spied, but it cannot be said to have “attacked” China, in its reported Huawei infiltration.  As a matter of international law, the reported actions appear to be legal, even if they were unwise or hypocritical.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Even More on the Privacy and Civil Liberties Oversight Board Hearing: Why International Law Won’t Matter Much for NSA Spying

by Julian Ku

I was fortunate to participate in a discussion held at a hearing of the Privacy and Civil Liberties Oversight Board today in Washington D.C. I say “participate in a discussion” because it was not like giving testimony to a congressional hearing where the congressman make speeches and ask questions unrelated to your testimony.  Rather, it was closer to a mini-oral argument with five judges asking you questions about difficult legal issues (luckily, there were three other panelists though to field most of the questions).  The members of the PCLOB are all engaged and asked tough questions of me and of my fellow panelists. (I think C-SPAN will have video of our panel posted here)

The written testimony that was submitted (as well as  comments from the general public) can all be found here at the Regulations.Gov website. I want to flag for this blog’s readership the day’s last panel, which focused on international and transnational legal issues related to the NSA’s Section 702  surveillance program.  Three members of that panel (former State Dept. Legal Adviser John Bellinger, Human Rights Watch’s Laura Pitter, and the Max Planck Institute’s Ulrich Sieber) tackled the ICCPR’s applicability to overseas surveillance as well as the applicability of rules of customary international law.  (Video can be viewed here).  For those who don’t have the patience to watch the video or view the transcript, I live-tweeted the panel here).

Let me just add my two cents on the issues in this panel: Based on the questions, I don’t think the majority of the members of the PCLOB are convinced that international law does, or even should, constrain U.S. surveillance under Section 702.  They are also unimpressed with the complaints of foreign governments, most of whom have similar overseas surveillance schemes but with fewer oversight mechanisms.  The only concern that seemed to bother the Board was the fact that U.S. companies selling information technology overseas are being tarred with the NSA label, making it harder for them to compete in foreign markets.  These are just my impressions, mind you, but I wouldn’t be surprised if the final PCLOB report on Section 702 gives short shrift to international law issues.  (By the way, I would expect the opposite in their treatment of the Fourth Amendment, however).

Anyway, something to keep an eye on….

Reading Tea Leaves in Confirmation Hearings for U.S. Cyber Commander

by Duncan Hollis

Last week, the U.S. Senate held confirmation hearings for Vice-Admiral Michael S. Rogers to replace General Keith Alexander as head of U.S. Cyber Command.  It’s interesting to see how both men received almost identical written questions in their respective 2014 and 2010 hearings.  More interesting perhaps are the similarities and variations in their responses with respect to how international law operates in cyberspace.

For example, in both 2010 and 2014, the Senate asked the nominee the same question: “Does the Defense Department have a definition for what constitutes use of force in cyberspace, and will that definition be the same for [U.S.] activities in cyberspace and those of other nations?

Here was Alexander’s written response:

Article 2(4) of the U.N. Charter provides that states shall refrain from the threat or use of force against the territorial integrity or political independence of any State. DOD operations are conducted consistent with international law principles in regard to what is a threat or use of force in terms of hostile intent and hostile act, as reflected in the Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF). There is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force. Thus, whether in the cyber or any other domain, there is always potential disagreement among nations concerning what may amount to a threat or use of force.

Remainder of answer provided in the classified supplement.

And this is what Vice Admiral Rogers provided to the Committee last week:

DoD has a set of criteria that it uses to assess cyberspace events. As individual events may vary greatly from each other, each event will be assessed on a case-by-case basis. While the criteria we use to assess events are classified for operational security purposes, generally speaking, DoD analyzes whether the proximate consequences of a cyberspace event are similar to those produced by kinetic weapons.

As a matter of law, DoD believes that what constitutes a use of force in cyberspace is the same for all nations, and that our activities in cyberspace would be governed by Article 2(4) of the U.N. Charter the same way that other nations would be. With that said, there is no international consensus on the precise definition of a use of force, in or out of cyberspace. Thus, it is likely that other nations will assert and apply different definitions and thresholds for what constitutes a use a force in cyberspace, and will continue to do so for the foreseeable future.

Similarly, both hearings had the Senate asking “Could U.S. Cyber Command lawfully employ offensive cyber weapons against computers located abroad that have been determined to be sources of an attack on the United States or U.S. deployed forces if we do not know who is responsible for the attack (i.e., a foreign  government or non-state actors)?

General Alexander’s response:

The establishment of U.S. Cyber Command, in and of itself, does not change the lawful employment of military force for self-defense. In this case, if the “attack” met the criteria approved by the President in our Standing Rules of Engagement, the military would exercise its obligation of self-defense. Operationally, it is difficult to develop an effective response when we do not know who is responsible for an “attack”; however, the circumstances may be such that at least some level of mitigating action can be taken even when we are not certain who is responsible. Regardless whether we know who is responsible, international law requires that our use of force in self-defense be proportional and discriminate. Neither proportionality nor discrimination requires that we know who is responsible before we take defensive action.

Vice-Admiral Rogers got the same question plus an additional add-on sentence, asking ”Without confident “attribution,” under international law, would the Defense Department have the authority to “fire back” without first asking the host government to deal with the attack?”  His written response?

International law does not require that a nation know who is responsible for conducting an armed attack before using capabilities to defend themselves from that attack. With that said, from both an operational and policy perspective, it is difficult to develop an effective response without a degree of confidence in attribution. Likely, we would take mitigating actions, which we felt were necessary and proportionate, to defend the nation from such an attack. I’d note that in such an event, U.S. Cyber Command would be employing cyber capabilities defensively, in the context of self-defense.

For me, I was struck by (a) the new emphasis on the ‘effects test’ that’s been bantered about for years in terms of identifying what constitutes a use of force subject to Article 2(4); (b) the lessened attention to ‘classified responses’, which peppered Alexander’s original written responses and that are now (thanks to Edward Snowden I assume) largely absent from Rogers’ answers; and (c) the softening of the language regarding the U.S. willingness to respond in self-defense where attribution is a problem.

What do readers think?  Is this all one, harmonious, consistent U.S. policy?  Or, are there shifts in these responses that bear watching?  Anyone interested in comparing the remainder of the two testimonies can do so by seeing what Alexander wrote here versus Rogers’ more recent written responses here.

Does It Really Violate International Law for Crimea to Hold a Referendum on Secession?

by Julian Ku

I am looking forward to the contributions to our “insta-symposium” on Ukraine and international law. I don’t have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation of the prohibitions on aggression and the use of force contained in the U.N. Charter.  In his statement today, he took aim at the proposed referendum in Crimea on joining Russia:

He also said that a proposed referendum in Ukraine’s Crimea region — one that, as proposed by proposed by pro-Russian Crimean lawmakers, would ask residents whether Crimea should be part of Ukraine or Russia — would “violate the Ukrainian constitution and violate international law.”

Any discussion about a referendum must include Ukraine’s legitimate government, Obama said. Washington considers Ukraine’s legitimate government to be the one installed by Parliament after last month’s ouster of President Viktor Yanukovych following months of protests.

Putting aside the Ukrainian law question, it is interesting that the U.S. government is specifically condemning the proposed referendum as a violation of international law.  Why exactly would the mere referendum (as opposed to the act of secession) violate international law?

I look forward to the views of our contributors and my fellow co-bloggers on this point, but on my first reading, the claim that the referendum would violate international law is undercut by the ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence.  In that opinion, the ICJ found (among other things) that general international law does not prohibit unilateral declarations of independence. I don’t see how the proposed referendum is really any different from a unilateral declaration of independence, at least from the perspective of international law.  The authors of the “unilateral” declaration of independence did not consult Serbian authorities (much less get its consent). Like the declaration of independence, the referendum does not by itself “secede” Crimea from Ukraine under international law.  And unlike the declaration of independence, the referendum could find support (if other conditions are met) in the law of self-determination.

I am personally sympathetic to the Ukrainian government here. But I am not sure President Obama is right about this legal point, and even if he is, I am not sure the U.S. ought to be committing itself to the position that this referendum is illegal.   If there is a deal to be made here (as Henry Kissinger recommends here), this statement seems to make it harder to get to that deal.

I have one final thought on why this statement might make sense. There is one country who is probably more opposed to a referendum on secession than the U.S: that would be Russia, which can’t exactly be ready to endorse this possibility for Chechnya or other restive Russian regions. Nor are the Chinese going to be excited by this referendum (think what a referendum in Tibet or Xinjiang would look like).  The President may be counting on the Russians to put a stop to the referendum, and maybe this statement would help them do that.  I hope that is the strategy, anyway.

The Crimea, Compliance, and the Constraint of International Law

by Chris Borgen

[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]

Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law.  But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)

Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.

As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).)  How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act.  How they use these terms inform other actors as to which arguments may or may not be made legitimately.

This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general.  Invoke the law, get bound by the law.

Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.

International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.

While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine… (Continue Reading)