Recent Posts

Update to 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. This is a follow-up post to the open letter we published 24 September.]

The open letter from international lawyers to the EU, EU states and the European Publics public concerning the existing international legal obligations to those seeking international protection has attracted signatures from over 900 international lawyers after it has been reopened for signature. The signatories include leading experts in international refugee law, Professors Deborah Anker (University of Harvard); Chaloka Beyani (LSE); Vincent Chetail (Graduate Institute of International and Development Studies);  Bhupinder Chimni (Jawaharlal Nehru University); Michelle Foster (University of Melbourne); Geoff Gilbert (University of Essex, Editor in Chief, International Journal of Refugee Law); Guy Goodwin-Gill (Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, University of Oxford); Elspeth Guild, (Radboud University Nijmegen); James Hathaway (Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan & Distinguished Visiting Professor of International Refugee Law, University of Amsterdam); Jane McAdam (University of New South Wales (UNSW)); Boldizsár Nagy, (Central European University & Eötvös Loránd University, Budapest); Gregor Noll (University of Lund); Thomas Spijkerboer (Professor of Migration Law, VU Amsterdam) and many others.

On 30th September, the office of the President of the European Commission, Mr Jean-Claude Juncker, responded to the Open Letter explaining that the Member of the Commission responsible for Migration, Home Affairs and Citizenship, Mr Dimitris Avramopoulos ‘is looking into the points you have raised and will respond to you rapidly.’

In summary, the Open Letter urges 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.

Read the entire Open Letter here (.pdf).

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

by Kevin Jon Heller

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

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

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

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

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

ICJ Rules (14-2) It Has Jurisdiction to Hear Bolivia’s Claim Against Chile

by Julian Ku

So the ICJ ruled today (14-2) that the Court does have jurisdiction to hear Bolivia’s claim that Chile has violated its legal obligation to negotiate “sovereign access to the sea” despite a 1904 Treaty that had settled the borders between the two countries.  I have been super-critical of Bolivia’s claim, going so far as to suggest there was a slam-dunk case against admissibility and jurisdiction since the basis of jurisdiction, the Bogotá Treaty, excludes cases where dispute has been settled by “arrangement” between the parties.  I suggested on Tuesday that perhaps the Court would take the case after all, despite the weaknesses of Bolivia’s case, and I received some tough criticism from commenters suggesting Bolivia has a very strong case for jurisdiction.

I still think Bolivia (and the commenters) are wrong, but obviously 14 judges of the ICJ disagree with me.  I’ve said my piece, so I won’t beat a dead horse (for too much longer).  I will only excerpt below Professor Harold Koh’s pithy explanation (from his oral presentation) as to why granting jurisdiction here is going to lead to lots of bad consequences.

10. Under Bolivia’s novel theory, by clever pleading, applicants could manufacture jurisdiction in this Court regarding previously settled matters. And this Court can expect to hear many more preliminary objection sessions like the one yesterday, replete with snippets of speeches, ministerial statements, and diplomatic exchanges as reasons to avoid the jurisdictional bar of Article VI. Notwithstanding Mr. Akhavan’s effort to underplay, Bolivia’s theory would doubtless encourage unilateral attempts to re-litigate the continent’s history and borders. The careful limits established by the Pact of Bogotá would become increasingly meaningless.

11. Mr. President, Members of the Court, the stakes here are larger than the interests of just these two Parties. The two treaties relevant to jurisdiction are part of a larger treaty network that binds Bolivia and Chile. The Pact of Bogotá succeeded in barring existing territorial settlements and other settlement matters from being reopened at the sole initiative of one State. But as Sir Daniel recounted, during the nineteenth and twentieth centuries, at least 12 separate treaties Bolivia settled disputed boundaries not just with Chile, but also with all four of its other neighbours106. May Bolivia now come before this Court to seek an order directing renegotiation of all of those other borders as well? And even if Bolivia did not, could those other regional partners also come to the Court seeking an order directing renegotiation of their borders?

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.

How Not to Wish Us a Happy Yom Kippur

by Kevin Jon Heller

Wishing Jews a happy Yom Kippur — good. Doing so over an image of the yellow star Jews were forced to wear by the Nazis — not so much:


Not surprisingly, WGN Chicago has since apologized.

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.

Poor ICC Outreach — Uganda Edition

by Kevin Jon Heller

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

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

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

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


Situation: Uganda

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

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

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

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

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

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

And here is the investigation press release:

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


Situation: Uganda

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

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

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

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

For a struggling institution, that’s simply unacceptable.

Book Symposium: Cyber War–Introduction

by Kevin Govern

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

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

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

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

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

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

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

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.

Here Comes the ICJ’s Chile-Bolivia Ruling

by Julian Ku

Latin  America is a trendy place for ICJ litigation these days with Colombia, Nicaragua, Costa Rica, Chile and Bolivia all currently embroiled in ICJ cases.  Indeed, it seems like Nicaragua alone is generating almost half of the ICJ’s current docket.  On Thursday (September 24), the ICJ will (finally) issue its ruling on Chile’s preliminary objections to its jurisdiction over Bolivia’s demand that Chile open negotiations to grant Bolivia sovereign access to the sea.

I have been harshly critical of Bolivia’s case calling it a slam dunk case for Chile on admissibility. To summarize briefly, Chile and Bolivia agreed in a 1904 treaty on a territorial settlement. Bolivia alleges that Chile has subsequently undertaken a legal obligation to “negotiate sovereign access to the sea” for Bolivia.  I found Bolivia’s evidence that Chile has undertaken such an obligation to negotiate extremely thin.

Having scanned the memorials, I am not very much more impressed by Bolivia’s arguments. On the other hand, I see that Chile has retained a pretty high-powered set of international lawyers including U.S-based law professors Claudio Grossman, Dean at American University, Harold Koh, former Dean at Yale Law and U.S. Legal Adviser, and Nienke Grossman, Professor, University of Baltimore.  And this list does not even mention well-known Europeans such as Sir Daniel Bethlehem, Q.C., Barrister, Bar of England and Wales, 20 Essex Street Chambers and Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and Development, Geneva. And I haven’t even mentioned the dozen other high-powered folks on Chile’s legal team.   I totally agree with their arguments (even Harold Koh and I agree!).

Though I think Chile has very good arguments, the fact that Chile has retained (and presumably paid) so many top international lawyers suggests Chile is worried the Court will allow Bolivia’s claim to proceed.  So even though I think Bolivia’s claim is very weak, it is probably true that courts, international or domestic, hate giving up cases on jurisdiction if there is the thinnest basis for taking the case.  Given the ICJ is not all that busy these days, this could be tempting for the court, and that could be trouble for Chile.

Does President Obama Have to Send the “Cyber Arms Control” Agreement with China to the Senate?

by Julian Ku

U.S. and Chinese negotiators are apparently very close to working out an agreement to limit the use of cyberweapons against each other.  There is talk that this agreement will be concluded before Chinese President Xi Jinping’s state visit to the U.S. next week.  The agreement will be pretty narrow in scope and apparently would not address the acts of cyber-theft and espionage that China allegedly carried out earlier this year. According to the NYT:

The United States and China are negotiating what could become the first arms control accord for cyberspace, embracing a commitment by each country that it will not be the first to use cyberweapons to cripple the other’s critical infrastructure during peacetime, according to officials involved in the talks.

I am skeptical that this kind of agreement could be effective for the reasons that Jack Goldsmith and Paul Rosenzweig have laid out (see also Goldsmith at greater length here).  But putting aside its effectiveness, it is worth asking whether a “cyber arms control agreement” would be the type of an agreement that required approval by two-thirds of the Senate as a treaty.

Much depends on exactly what the agreement purports to do.  If the agreement actually contains a commitment by the U.S. to “not be the first to use cyberweapons to cripple the other’s critical infrastructure”, than it is much closer to the traditional kinds of arms control agreements that have usually been approved under the U.S. system as treaties.  Unlike the Iran Nuclear Deal (which is mostly about lifting economic sanctions), the U.S. would be committing to refraining from using certain weapons or from exercising its military forces.

On the other hand, U.S administration sources caution that this agreement would not lay out specific obligations, but it “would be a more ‘generic embrace’ of a code of conduct adopted recently by a working group at the United Nations.” But even an agreement incorporating that code of conduct might be considered an “arms control” agreement since it requires that a state “should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public;” The rest of the code of conduct also imposes fairly robust obligations on a state.

I will have to think about this some more, but on first cut, it is possible that this cyber control agreement will have to be sent to the Senate as a treaty.  I think Senate approval of such a treaty would be a non-starter given the current political climate, so perhaps the Obama Administration will announce that this will be a sole executive agreement after all.  Whether that is permitted under the Constitution remains unclear though.