ASIL Live-Blogging, “What Makes a State?”

Moderator: Karen Knop, University of Toronto

Speakers: Lea Brilmayer, Yale Law School; Valerie C. Epps, Suffolk University Law School; Deng Deng Nhial, Deputy Head of Mission, Embassy of South Sudan; Paul R. Williams, American University; Temur Yakobashvili, Ambassador of Georgia to the United States

Introduction by Karen Knop

“What makes a State?” is the perfect topic for this conference.  “Statehood” is the quintessential example of a simple definition that does not apply simply.  Of course, we have the four factors under the Montevideo Convention; however, we also know that there a number of exceptions to these factors in practice.  In addition, the debate between the constitutive theory of state recognition and the declaratory theory thereof only complicates matters further.  Thus, statehood is by no means a simple prospect.

Remarks by Paul Williams

Known for the idea of “earned sovereignty.”

Will blend “what makes a State” and self-determination in the discussion.

What makes a State?  Territory.  Full-stop.

You can always find a population.  You can always find a government.  As for sovereignty or capacity to enter into foreign relations, this is primarily political, not legal; therefore, it is not, or should not be, a factor for statehood.

So why the focus on territory?  Because of the interrelationship between statehood and self-determination.

There are two ways to become a State: fight your way out of an existing a State and form your own, or suffer terrible atrocities until the international community takes pity on you and recognizes you as a State (i.e. Kosovo).

What about consent?  Oftentimes, State consent is either involuntary or fallacious.

What about R2P?  States have the right to territorial integrity, and the duty to protect the civilian population.

What about the ICC?  The ICC adds moral clarity to these conflicts.

“Earned Sovereignty” refers to the engagement of the international community with a population over a period of time until it is ready to stand on its own.  Examples: East-Timor and Kosovo.

Encourages international lawyers to look at this development when trying to answer the ultimate question.

Remarks by Valerie Epps

Known for her strong critique on the ICJ’s Kosovo Advisory Opinion, “foam on the tide of time.”

Three themes: First, the clashing norms in international law that are enmeshed in topic of statehood.  Second, why we are stuck in a rut as international lawyers on this topic.  And third, what it will take to get out of this rut.

(On a side note, James Crawford has penned one of the greatest books on the topic of statehood.)

With respect to the first theme, what two contradictory norms come into play when discussing statehood?  First, sovereignty, territorial integrity, non-intervention, etc.; and Second, the human rights movement (in particular individual rights and obligations, such as the right to engage in the political process, the right not to be discriminated against, the right not to be tortured, the right to due process, etc.) and R2P.

With respect to the second theme, why are we stuck in a rut?  Kosovo Advisory Opinion: there is no rule under international law that prohibits ad hoc groups from declaring independence.  The ICJ’s decision was terribly unhelpful in answering the question, “What makes a State?”  Italy v. Germany: the ICJ “stoically upheld State sovereignty,” even in the face of claims of egregious human rights violations.  In both cases, the dissenting opinions offered helpful critiques of the arguably antiquated notions of statehood.

With respect to the third theme, what will it take to get out of this rut?  We need a clearer definition of “peoples.”  We need more clarification on the ideas of internal and external self-determination.  We need to work on forms of autonomy (e.g. Scotland, Wales, etc.).  If a people wants to be independent, they should be allowed to form their own State, and the notion that the parent State must first consent is outmoded.  Finally, we should not worry about so-called micro-states (See e.g. Luxembourg).

Remarks by Temur Yakobashvili

We have enjoyed 3,000 years of statehood, and look forward to 3,000 more.  The fact that “Georgia is a State” is not the result of the Soviet Union; it is the result of 3,000 years of statehood, as previously mentioned.

Independent v. “Fake” States

Since WWII, it has been very difficult to define “victory.”  As it relates to Georgia, Russia has occupied two areas of Georgia and has claimed “victory” as a result of this occupation.  That “victory” is Russia’s claim that South Ossetia and Abkhazia are independent States; “States” which consist of territory that Russia has ostensibly annexed from Georgia under the guise of independence.  As a result, South Ossetia and Abkhazia are “Fake States.”  Making matters worse, these “Fake States” are the product of ethnic cleansing and other crimes against humanity.  Therefore, the international community should not accept these “Fake States” as real States under international law; it should not allow Russia to use international terms to illegally retake land under a desperate attempt to reclaim the “glorious past” – and size – of the former Soviet Union.

Remarks by Lea Brilmayer

Importance of State Recognition: There are certain kinds of benefits that are available only to recognized States.  For example, financial assistance from the World Bank, UN, or bilateral and multilateral aid donors; security assistance from other States recognizing the entity as a State; political power that allows an entity to sign certain agreements and to enter into certain international organization; and juridicial rights that are extended only to States.

Importance of Statehood: In order to enjoy the full protections of international law for you and your peoples, you must be a State.  As mentioned above, small States or micro States are not a problem.

PANEL QUESTIONS

Question by Paul Williams: We all agree that the Montevideo Convention is antiquated, but what should we do to update the Montevideo Convention to reflect reality without increasing instability?

Answer by Valerie Epps: The real problem is that State power trumps all, and that the law accommodates itself to State power.  Thus, we must not allow State power to dictate law.

Answer by Temur Yakobashvili: In addition to the Montevideo Convention factors, we must first have security guarantees.  Second, we must deal with the refugee problem by providing for repatriation of displaced persons.  Third, the rights of the persons who reside on the territory must be preserved and protected.  These three elements are vital for finding a practical solution.

Answer by Lea Brilmayer: Third States should base their support for either a State or a break-away State based on which State is “right” legally speaking.

Additional remarks by Paul Williams: Kosovo is the case study for how many recognitions you need to be a State.  Currently, they have 78, and by their own standards, they need 100.  Nevertheless, in my personal opinion, I believe Kosovo is a State.

Additional remarks by Temur Yakobashvili: Kosovo is not the case study; it is the exception.

ASIL Live-Blogging, “Limitations on Freedom of Opinion and Expression: Growing Consensus or Hidden Fault Lines?”

Moderator: Charlotte Ku, University of Illinois

Speakers: Michael O’Flaherty, UN Human Rights Committee; Paula Schriefer, Freedom House; Tad Stahnke, Human Rights First; Christopher Wolf, Hogan Lovells Privacy  and Information Management practice group

Remarks by Michael O’Flaherty

While we don’t talk about a hierarchy of human rights, freedom of expression is nevertheless one of the most important.  As a result, the regulation of freedom of expression requires close scrutiny.

Typical issues: journalistic space; blasphemy laws; defamation laws; protection of political speech space; and the internet.

The UNHRC has been concerned with freedom of expression for quite some time.  As a result, the HRC has considerable jurisprudence with respect to Article 19 of the ICCPR.  In light of this jurisprudence, the HRC determined that it was imperative to issue General Comment No. 34, which, after nearly 30 years, finally updated the interpretation and implementation of Art. 19 by not only the HRC but also the State parties.  Article 40 authorizes the HRC to issue General Comments to offer assistance to States in implementing and complying with the ICCPR.  The General Comments are widely accepted by the States, and they are given considerable weight and authority on matters falling under the ICCPR.

General Comment No. 34 was opened for public comment last year.  The HRC received 80 separate submissions containing over 350 suggested changes to the General Comment.  Twenty States from across the world entered submissions, including the US – the only time the US has commented on a draft General Comment before the final product.  This seems to be a change in the US approach to General Comments produced by the HRC.  In addition to these twenty States, scholars, NGOs and human rights organizations submitted briefs, which were quite helpful.  After all this input, the General Comment was published in July 2011.

The scope of the General Comment is divided into three parts.  First, the breadth of “expression” was expanded: every manifestation of every form of expression is covered under Art. 19.  This was important because of the changes in which the manifestation of expression have occurred over the years.  Second, the General Comment considers the technological development in the modes of expression, in particular social media.  Third, the Comment confronted the right of access to information and concluded that States have a proactive duty to publish information on matters of public concern.

Restrictions noted by the Comment: Art. 19(3), which provides for limitations on speech, are limited in scope.  The test for limitations on expression were clearly laid out in the General Comment.  The ements of the test are as follows: (1) legality – the limitation must be expressed in secular law; (2) restriction must be for the specific purposes itemized in Art. 19 – no other purpose may be invoked (while the Comment did not expound those specific purposes, it did address what constitutes “morals” and stated that the “moral” restriction must be compatible with universal values of human rights); (3) restrictions on expressions must be necessary and proportional; and  (4) there must be a direct nexus between the speech sought to be regulated and the “good” sought to be protected.

Weaknesses in the Comment: the Comment is not the last word on freedom of expression; however, it can never be that.  The jurisprudence on freedom of expression is constantly evolving; therefore, a “final word” on such a right is not tenable.  Moreover, it is not always wise to overly emphasize the content of certain terms.  And finally, the General Comment’s status under customary international law is open for debate.

Remarks by Christopher Wolf*

Focus: hate speech; in particular, on the internet.  There is a lot of violent content on the internet, especially Holocaust denial and a racist speech directed towards children.  Internet hate speech is basically pollution in the market place of ideas.  “The Lesson from Rutgers,” a piece written for CNN last week, addressed hate speech directed towards homosexuals.  Ironically enough, the comments to this piece online were filled with the most vile form of hate speech.

There is an epidemic of internet hate speech, from Facebook to YouTube to other websites.  So what about regulation of this hate speech?  While this speech is vile, laws in this area have proven largely ineffective (notwithstanding the First Amendment concerns as well).  For example, the laws regarding hate speech in Europe are largely symbolic.  In practice, the reflexive use of the law in this area generally results in an even worse response.  The best response to hate speech is often counter-speech in protest.

(Cites Section 230 of the Communications Decency Act)

What is the recommended approach?  Providing intermediaries a larger role in educating the public in engaging in counter-speech, or, as in the case of YouTube, reporting hate speech that is in direct contravention of YouTube’s terms and conditions.  In addition to YouTube, many companies, such as Google, enforce restrictions on hate speech uttered by its users.  But are there standards that these companies use in eliminating such hate speech?  This is hard to tell from the information available.  Nevertheless, in the case of Google, the elimination of hate speech is up to the discretion of the person who is charged with regulating such speech in accordance with its terms and conditions.

In conclusion, while government regulation of hate speech is not the way, these “softer,” self-governing approaches are already being used and have been, for the most part, effective in eliminating the most vile forms of hate speech.

Remarks by Paula Schriefer

The purpose of this address is not to defend hate speech; it is to raise and discuss the legal problems associated with punishing persons who have engaged in hate speech, in particular blasphemy.  In Indonesia, blasphemy is considered hate speech, and as such, persons who engage in blasphemy are regularly punished.  In Pakistan, persons guilty of blasphemy can be executed; however, no one, thus far, has been executed for blasphemy in Pakistan.

The effect of these anti-hate speech laws has actually encouraged attacks on minority groups protected by such laws.

Side Note: A recently promulgated Organization of Islamic Cooperation (OIC) Resolution attempted to balance religious liberties and free speech.

So how do we move forward?  Blasphemy laws are counter-productive and, in fact, constitute hate speech in and of themselves.  They radicalize the local population and encourage attacks on more moderate voices, which, as a result of such laws, have been largely silenced.  Thus, international law should take these practical consequences in mind, and not be driven solely by good intentions.

Blasphemy laws are vague and therefore abused.  They also infringe other human rights in undeveloped States.  Moreover, governments have used blasphemy laws to silence opposition groups.  Individuals have used blasphemy laws to settle personal scores.  And finally, blasphemy laws have often served as justification for violent groups to exterminate those groups with whom they disagree.  As such, blasphemy laws affect both minorities and majorities in equal measure.

The General Comment is good for two reasons: first, it establishes the international community’s approach to hate speech; and second, it has encouraged dialogue on the issue.

Remarks by Tad Stahnke

Free speech is good; hate speech is bad – but how do we deal with the tensions between the two?  Hate speech underpins much violence, but where do you draw the line between lawful free speech and unlawful hate speech?

Solutions: the General Comment is a step in the right direction.  While States should incorporate the proposals in the General Comment into their domestic laws, they can already use “softer” measures to dissuade hate speech, as discussed above.  In addition, UNHRC Resolution 16/18 is a positive development on the matter.  Nevertheless, the implementation of Resolution 16/18 is proving to be problematic.

Ultimately, education about tolerance and freedom is absolutely essential in preempting hate speech and its tragic consequences.

ASIL Live-Blogging, “Late Breaking Panel: The United Nations and Syria: Changing Dynamics – New Complexities”

Moderator: Nicholas Rostow, National Defense University

Speakers: Mahnoush H. Arsanjani, International Law Associates; Harold H. Koh, Office of the Legal Advisor, US Department of State; D. Stephen Mathias, Office of the Under Secretary for Legal Affairs, United Nations; Sair Mohamed, University of California, Berkeley School of Law; Timur Soylemez, Embassy of the Republic of Turkey to the US

Remarks by Harold Koh

Three comments: first, what precisely is happening in Syria? Second, what are the US and international community doing to address the crisis?  Third, what is the legal framework for addressing this problem?

First, the conditions on the ground are atrocious.  Tanks and artillery continue to target the civilian population, including women and children.  Power has been cut off throughout the country.  Crimes against humanity are rampant, the worst example of which is the situation in Homs, Syria.  At least 9,000 civilians have been killed thus far.

Second, what should the US and international community do about this?  There are no easy answers.  Externally, Syria lives in a geopolitically difficult neighborhood, surrounded by Iran, Lebanon, Iraq and Turkey.  Internally, Syria is divided among sectarian lines.  While UN action was set-back by the recent vetoes in the Security Council, the US and the international community are still striving for an end to the human rights abuses in the country.  The US government has ensured that Syrian nationals physically present in the US will not have to return to their violence-ridden homeland.  The US is working with the international community at large and the Arab League in particular to work towards delivering humanitarian aid to the victims in the short term, and to stopping the violence in the long term.

Third, what international principles should govern our actions?  There are three guiding principles.  First, the primary responsibility for stopping the violence lays with the SC.  And while the aforementioned vetoes were a setback, the US and the international community have not given up on the SC process.  Second, we should avoid the trap of seeing this dynamic and multifaceted crisis from a narrow perspective; meaning, we should not view the situation solely from a military intervention standpoint.  While there are some similarities between Libya and Syria, there are stark differences.  While military intervention was appropriate in Libya, it is not (yet) appropriate in Syria; there are a number of “softer” measures that can be used in Syria.  In fact, R2P recognizes that these “softer” measures must be used first before military action can be taken.  Third, the international community has committed itself to pressing for the Assad regime to step down and to hold the members thereof accountable (i.e. individually criminally liable) for the massive human rights atrocities that have occurred.  The international community must continue to tell the truth about what the Assad regime is doing in-country, and to insist that the leaders in the Assad regime face justice.

“In sum, in Syria, like elsewhere in the Middle East, we do not have the luxury of facing a simple situation.”  Modern international lawyers must avoid simplistic analogies and seek more nuanced approaches to the resolving the crisis.

Remarks by Timur Soylemez

Turkey has a long and troubled history with the UN, due to our diverging views on certain issues.  However, over the past 10 years, Turkey and the UN have grown closer, due to our converging views on the role of the SC in enforcing international peace and security.  Turkey has had a complicated history with Syria, as well.  Until the late 1990s, Syria was harboring the PKK; however, since then, Turkey has normalized its relations with Syria.  Obviously, the events over the past year in Syria have put a great amount of strain on that relationship.

Turkey’s position: we explained to Bashar Al-Assad that he can reform, he can change, and he can transition into a democratic government, which respects human rights.  However, immediately after they reached an agreement on these matters, Assad began bombing his own people.  When that happened, the Syrian government lost all credibility with the Turkish government.  Turkey has been frustrated by the inaction by the SC on this issue.  In particular, the texts of the resolutions that Russia and China vetoed were actually quite soft; they did not authorize military action under Article 42.  Nevertheless, Turkey was heartened to see the General Assembly’s condemnation of the Assad government; however, the UN system works best when the brain (SC) and the heart (GA) work together.

Turkey is trying to work with all its partners to strengthen the international community’s resolve to pressure the Assad government to see “the writing on the wall.”  In Tunisia, representatives from the Turkish government met with the “Friends of the Syrian People,” to start moving in the right direction.  What are Turkey’s responses?  Numbers – the more countries involved, the better.  Humanitarian aid – the more countries assisting, the more effective in both protecting the people and pressuring the government.  Empowering the opposition – Turkey is working daily to strengthen the Syrian opposition.  Sanctions – strengthen in scope and intensity.  Diplomacy – closing the Turkish embassy in Damascus.

In closing, our resolve must be very strong.  However, we must not break down the institutions as we did in Iraq.

Remarks by Stephen Mathias

While the previously mentioned veto has been problematic, the present UN Secretary-Gernal Ban Ki Moon has done much to increase pressure on the Assad regime to end the violence, while former UNSG Kofi Annan is currently spearheading the Special Envoy to Syria.  In addition, the Human Rights Council has been quite active in monitoring the situation.

It is important to note that the General Assembly Resolution which condemned the Assad regime was not adopted pursuant to the “Uniting for Peace Resolution,” which sets forth the basis by which the GA may act if the SC fails to do so as a result of a veto.  Instead, the GA acted under a normal session of that body.  In addition, international lawyers must be mindful of the limitations contained within Article 12 of the UN Charter, which ensures that the SC and GA do not adopt countervailing resolutions on the same subject matter.  In this context, Article 12 was not raised vis-a-vis the GA Resolution condemning Bashar Al-Assad.

While the SC has the primary role in maintaining international peace and security, the GA has an important role as well.  For example, in the case of Cote d’Ivoire, the GA recognized the credentials of the current President in 2010, despite the fact that the previous President was still exercising power in-country.  By doing so, the GA’s recognition of the new President gave him legitimacy and paved the way for the international community to act.  With respect to Libya, the SC was quite effective, as has been previously noted; however, the GA also suspended Libya’s membership on the HRC during the same time period.

Now, with respect to Syria, we have a GA resolution condemning the violence.  The Secretary-General has condemned the violence, calling for the adoption of the 6-point plan proposed by Kofi Annan.  Actions may be taken trough bilateral or regional associations, such as sanctions.  However, unilateral action would greatly undermine the UN’s efforts and progress to bringing an end to the violence in Syria.

Remarks by Sair Mohamed

Focus of remarks: R2P.  R2P was developed by ICISS and was created as a result of the massive human rights violations that occurred in Bosnia-Herzegovina and Rwanda in the 1990s.  It was also developed as a result of the paralyzing effects that a SC veto may have on efforts to bring mass atrocities to an end.  While the invocation of action pursuant to R2P was initially designed to be dependent upon SC authorization, R2P also provides that other States may act independently of SC authorization.  However, in the 2005 World Summit, the initial vision for R2P was watered down to reflect the existing status quo under the UN system.  As such, R2P is not law yet; it is a concept that is still developing.

So where is R2P as a result of the Syrian conflict?  First, R2P is not limited to military action; it also includes “soft” measures, as described above.  Second, R2P is not dead by any means.

Reconciling Libya and Syria?  R2P was expressly invoked in the former; it has not been mentioned with respect to the latter.  These different reactions are not necessarily determinative of the “triggers” of R2P, as politics had more to do with the different reactions in Libya and Syria than law.

Nevertheless, “R2P is not there yet.”  Right now, R2P’s biggest role is in “shaming” States into action, i.e. in stopping violence against their own civilian populations.  As long as we realize that R2P is not yet law, is not yet legally binding on the States, R2P will have the room to continue to develop, so that one day R2P may become law.

Remarks by Mahnoush Arsanjani

The Syrian problem is only the latest example in the last two decades vis-a-vis SC action under Chapter VII of the Charter.

There are five dynamics: First, regional organizations.  Second, increased military firepower necessary to stop violations.  Third, coordinated action under UN command and control.  Fourth, the lack of availability of military forces to the SC for Chapter VII actions as a result of shrinking military budgets in the Member States.  Fifth, the US’s role in enforcement action.

Major enforcement operations will require, as in the First Gulf War, Kosovo, and Libya, large military forces, which should operate under UN command and control.  Since the First Gulf War, international military action has been carried out primarily by the US.  If this trend continues – i.e. where fewer States are actively participating in SC authorized military operations – the UN system and R2P will be undermined.  Fewer States have been involved in such actions because States, other than the US and China, have continued to cut their military budgets.  This must change if the UN system of enforcement and R2P are to retain their respective legitimacies.

It is simply untenable to rely on one State – the US – to enforce SC resolutions authorizing the use of military force.  Domestically speaking, the US cannot be called upon to enforce SC resolutions globally when it has no interests in such areas.  Internationally speaking, responses by the international community must constitute just that – responses by the international community, not just the US at the behest of the international community.

Final remarks by Nicholas Rostow

The Syrian regime has violated the most fundamental norm under international law: the prohibition on the use of force under Article 2(4).  Because of the spill-over effects of the Syrian conflict, several countries have the right to self-defense under Article 51, such as Israel, Turkey, and Iraq.

The lessons of Libya have demonstrated that States must do more to participate in military action pursuant to SC resolutions.  While the US “led from behind” in Libya, the operations could not have taken place without military action and support.

Lastly, right now the Assad regime is weak.  As such, action should be taken to remove him from power.  Nothing short of the legitimacy of the entire UN system of maintaining international peace and security is at stake.  Moreover, if human rights are to stand for anything, and if R2P is to remain a viable doctrine, the international community must act to stop the mass atrocities.

Q&A

Question: What about setting up humanitarian corridors?

Answer by Timur Soylemez: Turkey is not prepared to use hard measures against Syria.  Approximately 25,000 refugees have spilled over into Turkey, and we are taking care of them, and will do so as long as necessary.  As such, Turkey is not prepared to set up a humanitarian corridor through force in Syria at this time.

ASIL Live-Blogging, “Cyber-Security: Regulating Threats to the Internet under International Law”

Moderator: Susan W. Brenner, University of Dayton School of Law

Speakers: Eneken Tikk-Ringas, Munk School of International Affairs, University of Toronto; Joel Brenner, Cooley LLP; Col. Gary D. Brown, Office of the Judge Advocate, US Cyber Command; and Christopher Soghoian, Center of Applied Cybersecurity, Indiana University

CYBER ATTACKS

Remarks by Eneken Tikk-Ringas

The events surrounding the so-called Estonian cyber attack were not technically cyber attacks; they were criminal actions, and treated as such.  It is worth noting that Estonia never invoked Article 5 of the NATO treaty with respect to the cyber attack.

Remarks by Gary D. Brown

While Estonia is often cited as cyber warfare, it was not cyber warfare; it was a criminal action.  In addition, the other example often cited, Georgia, was also not technically cyber warfare.  The best example was the cyber attack on Iran’s nuclear facilities.  In that case, the cyber action was certainly “an attack,” because something was broken – i.e. 1,000 centrifuges – during the cyber attack.  With that said, whether “something was broken” is not the only consideration in determining whether “an attack” occurred under IHL.  The biggest question is, what constitutes “an act of war” under international law?  While “an act of war” is not necessary to trigger IHL, perhaps it should be.  Regardless of this issue, the main question is, what types of cyber activities would merit a response?  In particular, what types of responses against non-State actors involving cyber attacks are legal under IHL?  [This question was never answered.]

Remarks by Christopher Soghoian

There are two kinds of attacks.  First, attacks that use security threats that are already known.   Second, attacks that use “zero day” flaws, i.e. flaws that are not known to the software vendor.  Why mention these?  Because the attacks on Iran’s nuclear facilities fall under the second category.  There was nothing Iran could do to protect itself against that attack.  The nuclear facilities were not connected to the internet; nevertheless, the cyber attack crippled Iran’s centrifuges.

There are also two kinds of attackers: States and “Anonymous.”  The above discussion referred to State-backed cyber attacks.  Anonymous takes matters into its own hands and attacks corporations and governments to cripple their systems.  Anonymous does not use “zero days”; it attacks known vulnerabilities in its targets.  Why does this matter?  Companies can do things to protect themselves against the first kind of attack.  However, companies can do nothing to protect themselves against a State-backed “zero day” attack.

Remarks by Joel Brenner

Practically speaking, cyber attacks should not fall under IHL.  Cyber warfare is really “a not war, but highly conflictual situation.”  We need to be very careful when discussing cyber warfare: it is not kinetic action; it is not an armed attack.  As such, IHL does not apply.  Nevertheless, it is a very serious situation which must be addressed.

Further Remarks by Gary D. Brown

The description of cyber warfare as “warfare” or “attacks” is not helpful in dealing with the phenomenon, from either a legal or practical standpoint.  “Cyber disruption” or “cyber interference,” although more appropriate to describe these events, are not sexy; therefore, no one precisely describes these events as such.

Question: how do we respond to a “cyber attack”?

The US does not define, in the relevant military manuals, what constitutes a “cyber attack.”  The reason for this is because a “cyber attack” is very fact-specific, which does not lend itself well to a definition.  Also, from a practical standpoint, it would be foolish for the US government to define what constitutes a cyber attack and what doesn’t, thereby tipping our hand to potential cyber attackers.

CYBER CRIME & ESPIONAGE

Cyber crime and espionage are much more prevalent problems than “cyber attacks.”

Remarks by Joel Brenner

China hacked into the DOD, stole a bunch of personal information, and then encrypted the information upon withdrawal, so the US has no idea what exactly was stolen.  Iran has stolen the technical details – including the defense measures – of the President’s helicopter.  Russia has perfected the art of identity theft through cyber crime.  As such, China, Iran and Russia are constantly engaged in cyber crime and cyber espionage; however, prosecution of these crimes is severely lacking.  As a result, both security and privacy are in the ditch.

Information security v. operational security

Everything from air conditioning to air traffic control data are vulnerable because they suffer from the same information security deficiencies.  The problem is, these information insecurities have now become operational insecurities.

Identity theft & economic espionage

The latter is much worse than the former, for the latter (intellectual property) drives the US economy.  Thus, while identity theft must be addressed, economic espionage must be the priority in our efforts to stop cyber crime.

Remarks by Christopher Soghoian

The government’s actions in response to these problems have made matters worse, both in terms of privacy and security.

Chip & PIN

Everywhere else in the world, “chip & pin” cards are used because they are safer and more secure.  However, the US has refused to follow suit because US credit card companies have decided it’s cheaper to handle the fraud claims than upgrade their systems by incorporating “chip & pin” technologies.

Remarks by Eneken Tikk-Ringas

As lawyers, we must think outside the box in addressing these issues.  The problem is not that we don’t know who the hackers are; the problem is that, legally, we don’t know how to deal with the hackers.

Remarks by Joel Brenner

The government is not behind the non-use of “chip & pin”; the credit card companies are.  Moreover, “chip & pin” is extremely expensive.  Nevertheless, as Christopher said, “chip & pin” is “low-hanging fruit” with which we can deal.  The other “low-hanging fruit” is infrastructure, which we have been very ineffective at addressing.

SIDE NOTE ON INTERNET PRIVACY

Remarks by Gary D. Brown

Obviously, the military is not that concerned with privacy.

BACK TO IDENTITY THEFT AND CYBER CRIME

Remarks by Christopher Soghoian

Cause and Effect: Botnets

Dangerous Botnets come from Spam which mainly advertise Viagra.  Thus, if we revamped the prescription drug market, we would eliminate Viagra ads, which would eliminate most Spam, which, in turn, would dramatically decrease dangerous Botnets.

Market Problems and Regulation

Many of the cyber crime tools which are being used were created by American companies, which sell not only to the US government, but also to other (less friendly) governments.  Thus, this market needs to be regulated to cut out the middle man – i.e. the software companies.  Software engineers should shell their product directly to the US government, in order to ensure that these tools do not end up in the hands of hostile governments and, ultimately, hackers or even terrorists.

Remarks by Joel Brenner

Certainly, public-private (i.e. government-company) sharing is a problem, but probably the best thing that can be done to address this issue is to have private companies share knowledge of these vulnerabilities with each other.  The problem is, many companies compete based on the cyber security systems that they offer as a product.  Thus, this cooperation is unlikely to happen absent legislation.

Remarks by Eneken Tikk-Ringas

The company-to-company sharing problem is not as severe in Europe, where there is more cooperation.

STATE ATTRIBUTION & PRIVACY

Remarks by Christopher Soghoian

As for State attribution, it is very difficult to determine the origin of “cyber attacks.”  Thus, it is difficult to attribute “cyber attacks” to a particular State.

As for privacy, as the systems currently exist, there is no such thing as privacy.  The government does what it wants, and orders companies (such as Facebook and Google) to provide it with the information it needs.  State security will always trump individual privacy.

Remarks by Gary D. Brown

As for State attribution, the military is not so concerned about attribution of cyber attacks to a person or a State; it is concerned about attribution to a machine.  If the military can shut down the machine, then the attack stops.

As for privacy, where is the personal responsibility?  If you leave your computer on all night, and someone hacks into it and uses it for nefarious purposes, the owner of the computer is somewhat responsible for propagating the problem (although the person is not likely criminally liable).

ASIL Live-Blogging, “Courts, Commissions, and the Complexity of Claims against States”

Moderator: Francis McGovern, Duke University School of Law

Speakers: Joan Donoghue, International Court of Justice; Timothy J. Feighery, Foreign Claims Settlement Commission of the United States; and Royce C. Lamberth, United States District Court for the District of Columbia

Introduction by Francis McGovern

Three Parts to Claims between States

1. State A <-> State B

2. Normalization of Relations

3. Settlement of Claims

Complexities: National Legislatures, Claimants, Domestic Courts, Conflicts of Laws, Treaties, Other States, International Courts and Commissions

Question: How did we achieve finality in normalizing relations between States and settlement of claims there-between in light of these complexities?

Answer by Tim Feighery: Three-step process: first, is there a national involved?  Second, was there an internationally wrongful act?  Third, was there exhaustion of local remedies?  References the Diallo case (Guinea v. DRC).  Once these three factors are met, then settlement negotiations can begin.  Generally, settlement negotiations end in an agreement on a lump sum.  After that agreement is reached, the question of how compensation will be paid remains.  Because in diplomatic protection cases the claim belongs to the State, and not to the national over whom the State asserts diplomatic protection, the State may disperse the funds as it sees fit.  In the US, the Legislature generally establishes claims commissions to handle these matters.

Question: What about the rest of the world?

Answer by Her Excellency Joan Donoghue:  In addition to diplomatic protection cases before the ICJ, claimants may seek redress before the regional human rights courts (ECtHR, ACtHPR, IACHR, etc.).  Also, if a bilateral investment treaty (BIT) is in place, claimants may seek dispute resolution through arbitral tribunals such as ICSID.

Question: What about other courts?

Answer by Judge Lamberth: Discusses a case involving a claim brought under the Foreign Sovereign Immunities Act against Iran, which engaged in actions that injured a US national.  Iran failed to appear before the Court; therefore, the Court had to determine whether to enter a default judgment against Iran.  A foreign State is treated as the United States, which means a default judgment may be entered against it.  In any event, the Judge heard evidence from a Mossad agent, inter alia, in reaching its decision.

Question: Was there any reluctance on the part of the ICJ in the recent Germany v. Italy case?

Answer by Her Excellency Joan Donoghue: This case will not answer whether the FSIA is in compliance with international law.  The nature of the case involved claims of Italian nationals against Germany for injuries resulting from Nazi atrocities during WWII.  There was no treaty between Germany and Italy; therefore, the Court had to look to customary international law.  The Court went through an extensive analysis of State practice and opinio juris.  Italy proffered two arguments vis-a-vis the existence of jurisdiction: first, there was a territorial tort exception in the law of armed conflict which allowed for assertion of jurisdiction in the case; and second, given the nature of the actions precipitating the injuries – i.e. war crimes, crimes against humanity, genocide, etc. – jurisdiction was proper.  The Court rejected both arguments and held that jurisdiction was lacking based on customary international law.

Question: What about Iraq’s participation in the United Nations Claims Commission?

Answer by Tim Feighery: Interestingly enough, in the last few weeks, we have seen a number of settlements in the UNCC for claims arising out of the First Gulf War.

Question: What is the best mechanism for the allocation of funds?

Answer by Her Excellency Joan Donoghue: “Best” by whose measure?  It depends on the goals and objectives the government has in mind.  For the payor State, the State cares very little on how the funds are allocated once a settlement is reached, because the responsibility shifts to the payee State to make such determinations.  For the payee State, the State has to determine who falls within the class and who falls without.  After making this determination, then the State allocates the funds as it sees fit.

Addition by Judge Lambert: In the US, the Court looks to the US Restatement of Torts to determine how the funds should be distributed (i.e. the nature of the injury, pain and suffering, etc.).

Question: Going back to Iraq, can you talk more about the finality of claims?

Answer by Her Excellency Joan Donoghue: During negotiations, it was essential that the US government agreed to extinguish all claims once the settlement had been reached.  Oftentimes, this necessary concession becomes politically problematic when Congress gets involved.

Addition by Judge Lamberth: Under the statute, the President waived all claims – including pending claims – in reaching the settlement.  The DC Circuit held that the US government could not do that under the FSIA; the Supreme Court reversed the DC Circuit, holding that the waiver was valid and that all claims had been extinguished.  Since this decision, the FSIA has been amended several times, most recently in 2010.  Despite these amendments, if there are any claims brought as a result of the Libyan conflict, the Judge believes that, if the President and Congress decide to waive all claims in exchange for a settlement, they likely have the constitutional power to do so.

Question: What about Russia?

Answer by Judge Lamberth: In this case, which involved Nazi-seized art that ended up in the hands of the Soviet (now Russian) government, the Court entered a default judgment against Russia pursuant to the FSIA.

Question: Can you talk about expectations? In particular, when large awards are granted in domestic courts?

Answer by Tim Feighery: Claimants actually have greater expectations in private dispute resolution mechanisms (i.e. international arbitral tribunals) than through  their own governments.  Those expectations nevertheless exist in State-driven dispute resolution mechanisms, such as in the FCSC, which make it may make it difficult to reach an agreement.

Addition by Judge Lamberth:  With that said, as a result of actions taken by the US against Iran, several claimants in His Honor’s court will likely become quite wealthy.

Q&A

Question 1:  The last time the ICJ assessed actual damages was 1949.  Since then, the ICJ has asked the parties to reach agreements on damages outside of the Court, which often fail.  Do you think this is effective?  Doesn’t this just delay the proceedings?

Answer: There are many reasons for the practice you discussed, not the least of which is the peaceful settlement of disputes.  As a result, the ICJ has adopted the policy of encouraging the parties to reach a peaceful settlement on their own before the ICJ will award specific damages.  In the Diallo case, the parties failed to reach such an agreement.  As a result, the ICJ is currently considering the damages issue in that case.

ASIL Live-Blogging, “Military Intervention and the International Law of Peace,” Plenary Opening Presentation

Remarks by Patricia O’Brien, Office of the Under-Secretary General for Legal Affairs, United Nations

Focus: Responsibility in the Context of the UN and the situations in Libya and Syria.  “The Responsibility to Protect” was widely accepted during the 2005 World Summit.  The UN Secretary General has determined that R2P has three pillars: (1) responsibility of States to protect populations, (2) responsibility of international community to assist States in protecting their populations, and (3) commitment of States to take collective action through the UN Security Council, if necessary, when States fail to protect their populations.  Such collective action can be taken pursuant to the SC powers under Chapters VI and VII, which serve as both the legal framework for and the restrictions on the use of force under Article 2(4).  R2P places a positive responsibility on the community of States to protect vulnerable populations from the worst crimes known to humankind, such as war crimes, crimes against humanity, and genocide.  R2P does not, however, change the existing law vis-a-vis the use of force under Article 2(4) and non-intervention under Article 2(7).  In this way, R2P expands the scope of the use of collective action within the UN system, without undermining that system.

Libya

Action by the international community was “swift, multifaceted, and drastic,” action which was taken expressly under R2P.  Some States criticized the action taken in Libya as being beyond the scope of the relevant SC Resolutions, while others saw the action as appropriate under the circumstances and effective in stopping greater crimes from being committed.

Syria

The current stalemate in the SC is of great concern, given the deteriorating situation in Syria.  Despite the vetoes in the SC, the international community has not given up.  The Arab League has drafted a number of proposals to bring an end to the violence.  The General Assembly has widely condemned the violence and the regime.  And former SC General Kofi Annan, Special Envoy to the Syrian situation, appears to be making progress in his talks with the Syrian government.  Thus, while the Syrian government “has clearly violated its responsibilities under R2P, the international community has not.”

In conclusion, the role of R2P is not to circumvent the UN system, but to work through the system and serve as “moral pressure” on States engaging in massive human rights atrocities to cease and desist.

Remarks by Anne Orford, University of Melbourne Law School

Expanding upon Professor O’Brien’s comments, Professor Orford emphasizes that R2P should not be limited solely to military action.  In addition, it’s worth noting the history of the development of R2P through the UN system.  Conceptually, R2P asserts that the lawfulness of authority for local and national governments flows from the responsibility to protect the civilian population.  That is not to say, however, that R2P in any way affects customary international law vis-a-vis the right to self-determination.

There are four lines of inquiry when it comes to R2P: First, R2P is of normative significance not because it imposes new obligations, but because it confers an international legal framework to deal with such violations.  Second, in thinking of R2P as a legal framework, it is worth noting the discretionary nature of R2P.  Third, there is considerable uncertainty regarding who decides what protection means, how it can be realized, and which claim of authority can realize its goals.  Fourth, there is a tension between the responsibility to protect and the “authoritarian community of security States” utilizing R2P to engage in military action.

In short, more attention needs to be paid to softer forms of executive action, and not just military action, under R2P.

Remarks by Rosa Brooks, Georgetown University Law Center

Focus: contradictions and problems flowing from changing notions of State sovereignty vis-a-vis R2P.  Two shifts are worth noting: first, the normative shift in State sovereignty; and second, the technological shift in military actions.

There are two primary communities asserting sovereignty limiting doctrines: HR/IHL communities espousing R2P and the counterterrorism community claiming “waiver” of sovereignty for terrorist-harboring States.  The former has two aspects: first, as Professor O’Brien described above; and second, and perhaps more drastically, that the protection of civilian populations is a pre-condition to State sovereignty.  Professor Brooks disagrees with the previous comments that R2P was designed solely to work within the UN system.  R2P was designed to give States the right to engage in military action when the SC becomes paralyzed.  R2P is a two-sided coin: a State has a duty to protect its own population, and a State has a duty to protect the populations of other States.  Despite this reality, the normative shift in the idea of State sovereignty raises a number of issues, as discussed by the previous speakers.

In addition to the normative shift, there has been a technological shift which has reduced the costs of States to engage in force, both in monetary (e.g. hell-fire missiles are $60,000 a piece) and humanitarian (i.e. collateral damage) terms.  Due to these lower “costs,” States may be more willing to engage in military action to fulfill their obligations under R2P.

Because of the normative and technological shifts in State sovereignty, States attempting to fulfill their obligations under R2P may be more likely to engage in the use of force to stop mass human rights atrocities.  How this will play out is unknown; however, the challenges that these shifts raise are predictable.

Remarks by Ian Hurd, Northwestern University

The “bundle of laws” – the prohibition on the use of force and the duty of non-intervention under the UN Charter and customary international law – raises a number of legal question vis-a-vis R2P.  While the “legality” of the Libyan action will not be addressed, the implications thereof will be.  There are two key questions arising from the Libyan operation: first, did the Libyan action change international law; and second, what did we learn about the line between domestic and international affairs?  With respect to the former, the Libyan action did not “change” the law as we know it.  The SC resolutions authorizing the use of force in Libya referenced “responsibility” but not “responsibility to protect,” and they were drafted pursuant to the SC’s powers under Chapter VII.  Thus, the Libyan action did not change the law.  With respect to the latter, the UN system is designed to deal with inter-national disputes.  The line between domestic disputes and international disputes is governed by the SC.  While “a threat to international peace and security” is well known, there is no domestic analog to the “threat to domestic peace and security.”  Perhaps that is what R2P is really trying to do – create a domestic analog for a “threat to international peace and security.”

Syria is a threat to domestic peace and security, which explains why there is gridlock in the SC.  It is difficult to find a legal violation on the part of Syria because it has not signed most human rights treaties.  As a result, in cases similar to Syria, the SC has labored to transform a threat to domestic peace and security into a threat to international peace and security.  Whether this is a positive or negative practice of the SC will not be addressed here.

International law is a function of State practice, not the other way around.

Final Remarks by W. Michael Reisman, Yale University

Positions on R2P often depend upon the perspective of the person.  For those working within the UN system, R2P works – and must work – through the UN mechanisms designed to maintain international peace and security.  For those outside the UN system, R2P is designed to stop atrocities, such as the Rwandan genocide, when the UN system fails to fulfill its mission and put an end to the violence.  Question: would R2P really have addressed Kofi Annan’s concerns when the Rwandan genocide began?  If we are talking about unilateral humanitarian intervention to stop mass atrocities in light of the technological advances in the tools of warfare (i.e. drones), such a doctrine gives one pause.  Such a doctrine could be ripe for abuse, by actors not as benevolent as the US (i.e. North Korea).

Discussion between Speakers

Patricia O’Brien: R2P is in its infancy.  The UN sees R2P as a prism through which to see how collective action should be taken through the SC.  R2P demonstrates the flexibility of the Charter in responding to such atrocities, a response not anticipated in 1945.  There is potential within the Charter to push the boundaries of action through the UN system.

Anne Orford: R2P raises questions of selectivity, jurisdiction, and recognition that must be addressed from an international legal perspective.

Rosa Brooks: Drones are not particularly effective against developed States with standing armies, air forces, navies, etc.; they are effective against non-State actors.  Thus, while Michael Reisman’s concerns are understandable, they are not likely to occur in the examples that he citied.  With that said, there is no logical distinction between the use of drones against terrorists in Pakistan, Yemen, etc., and the use of massive military action to stop States from inflicting widespread and systematic human rights atrocities upon their civilian populations.  Reframed in this way, Professor Brooks shares Professor Reisman’s concerns due to the higher likelihood of collateral damage in massive military action.  For this reason, R2P must be further developed.

ASIL Live-Blogging: “Confronting Complexity Through Law,” with Jakob Kellenberger, President of the ICRC

This post will be the first of many by The New International Law (TNIL) from the American Society of International Law (ASIL) Annual Conference, taking place on March 28-31, 2012 at the Fairmont Hotel in Washington, D.C.  The first major presentation of the conference is the 14th Annual Grotius Lecture entitled, “Confronting Complexity Through Law,” presented by Jakob Kellenberger, the current President of the ICRC.  President Kellenberger’s presentation will be preceded by a “Welcome and Introduction” by David Caron, the President of ASIL, followed by further discussion of Dr. Kellenberger’s remarks by Claudio Grossman, the Dean of the American University Washington College of Law, and Leila Sadat, the Henry H. Oberschelp Professor of Law and Director of the Whitney R. Harris World Law Institute at the Washington University School of Law.  Without further adieu, let the lecture begin.

Introduction and Presentation of ASIL’S Honorary Member Award

After a brief recitation of the history of International Humanitarian Law (IHL) and the progressive (albeit difficult) development thereof under Dr. Kellenberger’s stewardship of the ICRC since 9/11, Dr. Kellenberger was presented with the ASIL Honorary Member Award.  In a rather touching moment, Dr. Kellenberger raised the award and thanked his colleagues in the room.

Further Remarks by Dean Claudio Grossman

After echoing the initial remarks of the important role of the ICRC, Dean Grossman called for the expansion of the ICRC’s role in present and future conflicts.  Dean Grossman then introduced Dr. Kellenberger who, after a rather humorous “debate” with Dean Grossman about whether he should sit or stand for his presentation, took to the podium.

Grotius Lecture on “Confronting Complexity Through Law” by Dr. Jakob Kellenberger

Dr. Kellenberger began with a simple, but important, question: How do we deal with the complexity of violence and armed conflict, which is a special form of collective violence?  The answer: By turning to the law.

What does complexity mean?  “Armed conflict remains a tragic reality in the 21st Century.”  We are witnessing continued violence against vulnerable persons, including murder, torture, inhumane treatment, rape and sexual assault, as well as the denial of basic political and civil rights, such as the right to an impartial and speedy trial.  As such, complexity must be approached with this background in mind.  The predominant form of armed conflict is non-international, which is increasingly driven by economic factors, as individuals and peoples struggle for scarcer and scarcer resources.  Geopolitics have unfortunately exacerbated this already tragic problem – from all-out armed conflicts to increasing food prices, the latter of which often leads to violence.  “The humanitarian needs in these contexts may be just as grave as in armed conflicts.”

So, “How do we use international law to address this complexity?”

There are generally three responses.  First, domestic and international institutions have chosen to abstain from action.  A classic example is the failure of international community to agree on a genocide convention prior to WWII.  Second, many critics simply raise their hands in disgust and say IHL is not suited to deal with these issues.  “Third, and fortunately the most common, is to uphold existing law in the face of new challenges, whether real or perceived, … and adopt appropriate solutions.”

Complexity in law is the result of the tension between domestic and international law.  The main problem is universality, but not in the obvious sense; the problem with universality is when States avail themselves of the treaty-making process yet nevertheless fail to comply with their international obligations under IHL for political reasons.  A further problem is when States fail to incorporate international law into their domestic laws.

States must ensure that IHL serves its protective function, to avoid the ex post facto remediation of IHL violations in international criminal tribunals.  In short, States must live up to their obligations under IHL.

The key legal issue is whether the current dichotomy between international armed conflicts (IACs) and non-international armed conflicts (NIACs) under IHL is sufficient, or whether new classifications are needed.  One example is when a State takes up arms against its citizens, and the violence spills over its borders into another State.  Another example is when international forces become involved in existing NIACs.  The final example is the war against Al Qaeda, and other terrorist organizations.  Some of these conflicts have been classified as IACs, while others have been classified as NIACs.  The key distinction between IACs and NIACs is the “qualities” of the parties involved.  IACs involve conflicts between States; NIACs involve conflicts between a State or government and internal groups, or between internal groups.  The existing rules under IHL are sufficient to deal with existing and emerging conflicts; any new classifications would dilute IHL protections, a position the ICRC cannot support.  Nevertheless, IHL should be updated to include the following humanitarian concerns:

Poor detention conditions, which may have long-lasting effects on the detainees.  Poor conditions mean lack of adequate food, water, and clothing, among other things.  Detainees have limited contact with their families, even though such contact is a legal obligation and sound public policy.  Overcrowding is also an enormous problem, as is unnecessary prolonged detention.  While these issues are addressed in the law of IAC, they are not adequately addressed in the law of  NIAC, in particular, Common Article 3.  As such, they must be updated.

Vulnerable persons, such as women, the disabled, and the elderly.  They must be specifically protected, as these groups tend to suffer the most in internment during NIACs.  In practice, internees are not notified of the reasons for their internment, or what their legal recourses are.

On a side note, “indefinite detention” has been illegally expanded outside of the strict confines of the Third Geneva Convention on POWs.  This indefinite detention, regardless of the status of the person being held, must be stopped.  IHL does not allow for indefinite detention of any persons, whether such persons are terrorists or not.

Additional Protocol II addresses internment only half-heartedly – more work is needed to fill the lacunae left in the law of internment under Additional Protocol II.

In addition, the transfer of persons between States has been abused over the past decade.  Such transfers (i.e. rendition), in which a person is transferred from one State to another and abused, tortured, or even killed, are not allowed under IHL.  Because such transfers have increased, and are likely to continue to increase, special attention must be paid to ending the practice.

Special emphasis must also be placed on holding violators of IHL individually criminally liable.  The proliferation of international criminal tribunals has been a positive, if not necessary, development in punishing – and even preventing – IHL violations; however, it is not sufficient.  State parties to the Geneva Conventions must labor to prevent IHL violations before they occur, not simply punish them after the fact or deter them indirectly through the threat of prosecution.

Regional mechanisms have also helped in rectifying IHL violations, such as the European Court of Human Rights and the Inter-American Court of Human Rights; however, they are not designed to punish and remedy specific IHL violations – they are designed to protect and preserve human rights.  As such, human rights courts cannot serve as a stop-gap for IHL violations.  More must be done.

In short, while international criminal tribunals and human rights courts have done much to address IHL violations indirectly, a direct mechanism to prevent such violations is necessary.

There have been many proposals for such a direct mechanism over the years.  First, the establishment of a High International Committee to monitor such IHL violations in armed conflict was suggested.  Second, the ICRC proposed an ad hoc body along the lines of the international criminal tribunals.  And third, the ICRC has proposed standing bodies similar to the human rights courts to monitor abuses and handle individual petitions.  These proposals should continue to be the topic of discussion to fill the void left by the international criminal tribunals and human rights courts.

Lastly, cyber-warfare presents a particular problem to States that are struggling to comply with their IHL obligations in response thereto.  “Means and methods of cyber warfare are subject to IHL just like other new technologies.”  Nevertheless, this technology presents a challenging task, the details of which are addressed at length in Dr. Kellenberger’s book.  But suffice it to say, any response to such cyber attacks must be taken only after careful deliberation.

In conclusion, while there are many new challenges to IHL, IHL is sufficient to deal with these challenges, provided States act responsibly to IHL violations after sober consideration.  IHL nevertheless should be expanded to address these new complexities.

Remarks by Professor Leila Sadat

Theme: importance of law in confronting the complexity of violence, in particular the role of IHL in confronting armed conflict.  In his recent work, Dr. Kellenberger proffered three ways to moderate the effects of violence in the world: commitment to reason, understanding, and humanity.  First, with respect to reason, law alone is not enough to prevent violence; violence must be prevented before the case reaches the courthouse door.  Second, with respect to understanding, while Hobbes may have said that life is “brutal and short,” such a reality should not stop our attempts at understanding those who are different from us.  Third, with respect to humanity, despite the exhortations to the contrary, universal norms can be applied to all peoples regardless of cultural differences, provided those cultural differences are respected.  Finally, States should do more than just criticize the shortfalls of IHL; they should strive to live up to their IHL obligations.

Gaps in IHL

While the ad hoc tribunals and the ICC have done much to punish war crimes, crimes against humanity, genocide, and even the crime of aggression (by 2017?), there is a need for a Crimes Against Humanity Convention.  The failure of the international community to take up the Crimes Against Humanity Convention is the product of what Dr. Kellenberger described as the global community of States’ first defect: the preference for abstention over action when it comes to tackling problematic issues.  The international community cannot, however, let difficult, problematic issues deter it from tackling crimes against humanity or adopting the aforementioned convention, which is necessary to fill a lacuna in the law.  With that said, it will likely fall to a body other than the ICRC to ensure that this becomes a reality.

Finally, powerful States, such as the United States, must do more to comply with their IHL obligations.  The US must be a leader in IHL compliance and development, and must not allow internal political disputes to justify noncompliance.

Live Blogging the ASIL Annual Meeting

TNIL’s own John Heieck will be attending this year’s ASIL Annual Meeting in Washington D.C. and live blogging the event, entitled Confronting Complexity. ASIL’s annual meeting is one of the most important events in international law every year. With over a thousand international legal minds gathered in one place, the event promises to informative and interesting. From Wednesday on, John will be filling us in on all the major happenings in D.C.

Review of International Tribunal Decisions for the week of March 19, 2012

This week has decision from the International Criminal Tribunal for the Ex-Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ICTY deal with the issues of attorney/client privilege, subpoenas for sitting heads of State and expert testimony and reports. The STL stayed the proceedings in order to define the crime of criminal association and the ECCC issued several documents dealing with the right to appeal, judicial recusal and interference with investigations.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Motion for Subpoena to Interview President Karolos Papoulias

Background

The Accused filed a motion for a subpoena to compel the sitting president of Greece to give an interview to the defence about meeting with the Accused in the mid-nineteen-nineties when the president was foreign minister of Greece.[2] The motion and the responses from Greece raised issues of head of state immunity from subpoenas from the Tribunal and the ability of a State to decline co-operation on the basis of national law.[3] The Accused supplied a detailed account of the evidence that he expected the president of Greece to supply.[4] The Chamber denied the motion.

Reasoning

The Chamber did not consider it appropriate to order a defence interview when the Accused is already “aware” of the evidence the witness is going to give, as the purpose of the interview is to allow the defence to prepare for trial.[5]

Prosecutor v. Šešelj[6]

Decision on Further Notifications to the President Submitted by the Legal Advisor to Vojislav Šešelj

Background

The Legal Advisor to the Accused wrote a letter to the President complaining that he and the case manager have not been compensated for their travel expenses by the Registry and were prevented from having a privileged meeting with the Accused.[7] The Registry responded that the Legal Advisor does not have standing to raise these issues.[8] The President denied relief.

Reasoning

The President noted that the Accused had not participated in this motion practice and that the Legal Advisor was not a party to the case.[9] A prior exception was made to give the Legal Advisor standing to file motions, but only because that issue regarded the Accused’s communication with the advisor, whereas this issue relates to the Legal Advisor.[10] Therefore the President found that there was no standing to bring the issue before him on administrative review.[11]

Prosecutor v. Tolimir[12]

Decision on Admission of Expert Report of Ratko Škrbić with Separate Opinion of Judge Mindua and Dissenting Opinion of Judge Nyambe

Background

The Accused called an “expert” witness to testify about, inter alia, population movements after the fall of Srebrenica in 1995 and moved to have his “expert” report claiming that the deaths in Srebrenica could be counted in the hundreds, not that thousands, admitted into evidence.[13] The Prosecution argued that the report should not be admitted, inter alia, because its suggestion that genocide did not take place was “an affront to the victims of these crimes [and] to the integrity of these proceedings.”[14] The Chamber denied the admission of the report by a majority and issued a concurring and dissenting opinion.

Reasoning

To start, the Chamber found, by majority, that the witness was not qualified to be an “expert” on population movements because, while he was qualified as a military expert, he had no relevant experience in the area.[15] The Majority then went on to analyze the “expert” report and conclude that it is biased, unprofessional and that it used a “methodology […] clearly in conflict with the expected standard of work required for an expert witness.”[16] The Chamber therefore, by majority, held that the report failed to satisfy the minimum standards for admissibility required by Rule 89(C).[17] The Chamber also found that the prejudice of admitting the report would significantly outweigh its probative value because “the witness challenged the evidence not only in the current proceedings but in all other trials on the number of victims in relation to the fall of Srebrenica. The First Report’s probative value is, in the Majority’s opinion, Judge Nyambe dissenting, manifestly unreasonable and outweighed by its prejudicial effect to the case.”[18]

Prosecutor v. Karadžić[19]

Decision on Request for Review of Decision on Privileged Telephone Calls

Background

The Accused submitted a request to the Registry of the Court to allow him to have privileged telephone calls with this legal advisor over the advisor’s cell phone.[20] The Registry rejected the request citing longstanding policy and security risks related to cell phones.[21] The President of the Tribunal overruled the Registry decision

Reasoning

The President fount that the Accused by not being able to have privileged conversations with this legal advisor over the latter’s cell phone meant that he was no able to fully enjoy his right to have privileged conversations.[22] The President considered that the security concerns advanced by the Registry failed to take into account similar risks related to landline telephones, the advance of mobile phone technology and it ubiquitousness in modern culture.[23] On this basis the President found the policy to be “unreasonable” and ordered that the Accused be able to have privileged mobile phone communications with his legal advisor.[24]

STL

Prosecutor v. Ayyash et. al.[25]

Order for Stay of the Scheduling Order of 7 March 2012 and Giving Further Directions

On 2 March 2012, the Pre-Trial Judge filed a request with the Appeals Chamber to define “criminal association” under Lebanese law because of a motion from the Prosecution to amend the indictment.[26] The Pre-Trial Judge subsequently denied the motion in its entirety on procedural grounds.[27] The President of the STL issued this decision staying the scheduling order of the Pre-Trial Judge on the grounds that even though the motion giving rise to the request for interpretation has been denied, the Appeal Chamber may still have jurisdiction to decide the issue referred to it by the Pre-Trial Judge.[28] The decision on whether to decide the issue is with the Appeals Chamber and so the President ordered a stay.[29]

ECCC

Case 002[30]

Decision on Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne bis in idem and Amnesty and Pardon)

The Accused filed a motion to appeal the Trial Chamber’s decision not to dismiss the case arguing that she had a right of appeal because had the Trial Chamber granted the request, the Prosecution would have had a right to appeal. The Supreme Court Chamber dismissed the motion as there is not right to an interlocutory appeal and the right to appeal only lies for a decision that terminates the proceedings.

Cases 003/004[31]

Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions Within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004

This note is too long to summarize here. It is a blistering denunciation of the workings of the ECCC that calls into question its very reason for existing. For everyone interested in how not to create an internationalized criminal court, this is the blueprint. The International Reserve Co-Investigating Judge lists numerous occasions of national staff preventing him from carrying out his mission and his inability to effectively circumvent these obstacles.

Interoffice Memorandum

Decision of the JAC regarding the request to appoint two international judges to hear the application for disqualification of the President of the Pre-Trial Chamber.

On 2 March 2012 the international judges of the Pre-Trial Chamber notified the Judicial Administration Committee of the ECCC that they were recusing themselves from the decision on the defence request for the disqualification of the President of the Pre-Trial Chamber filed by the International Reserve Co-Investigating Judge. In that notification, the Judges asked the JAC to appoint replacement judges to deliberate on the motion. The JAC declined to do so stating that the proper course of action was for the International Judges to request permission to recuse themselves from the Pre-Trial Chamber, and then the JAC could be seized of such a request issued by the President of the Pre-Trial Chamber. The decision was taken by a “super majority” with one international member dissenting on the grounds that the JAC as an administrative and not judicial body had no basis to review the validity of the recusals.

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[1] IT-95-5/18-T, 20 March 2012.

[2] Ibid. at ¶¶ 1, 6.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 6.

[5] Ibid. at ¶¶ 11-12.

[6] IT-03-67-T, 21 March 2012.

[7] Ibid. at ¶¶ 6-7.

[8] Ibid. at ¶ 8.

[9] Ibid. at ¶ 11.

[10] Ibid.

[11] Ibid.

[12] IT-05-88/2-T, 22 March 2012.

[13] Ibid. ¶¶ 1, 18.

[14] Ibid. at ¶ 7.

[15] Ibid. at ¶ 22.

[16] Ibid. at ¶¶ 25-36

[17] Ibid. at ¶ 38.

[18] Ibid. at ¶ 39.

[19] IT-95-5/18-T, 23 March 2012.

[20] Ibid. at ¶¶ 2, 8.

[21] Ibid. at ¶¶ 3, 9.

[22] Ibid at ¶ 11.

[23] Ibid. at ¶ 12.

[24] Ibid. at ¶ 16.

[25] STL-11-01/PT/AC, 16 March 2012.

[26] Ibid. at ¶¶ 1-2.

[27] Ibid. at ¶ 6.

[28] Ibid. at ¶¶ 8-10.

[29] Ibid. at ¶ 11.

[30] Case File No. 002/19-09-2007-ECCC-TC/SC(11), 20 March 2012.

[31] Case File Nos. 003/07-09-2009-ECCC-OCIJ, 004/07-09-2009-ECCC-OCIJ, 21 March 2012.

Jurisdiction over the International Crime of Aggression

Traditional doctrine of just ius in bello may be identified in efforts such as of those of the Drago-Porter Convention, the Kellog-Briand Pact, or under the framework of the League of Nations, and even though aggression per se was not susceptible to a legal definition. Since the Nuremberg and Tokyo tribunals aggression has become generally recognized as the ‘supreme international crime’. The customary prohibition that applies to the crime of aggression has as a result extended to include individual liability for international criminal acts.[1]

Aggression was first considered an international crime by the London Agreement in 1945, which was followed one year later by the United Nations (UN) General Assembly decision for adoption of an international criminal code. In addition, in 1974, a General Assembly resolution adopted as the definition of aggression the first and unjustified “use of armed force against the sovereignty, territorial integrity or political independence of another State”.[2] Nevertheless, the political and ideological fears of the Cold War impeded the development of international prescription for aggression.[3]

Recently, while a certain degree of international agreement has been reached on the definition of aggression by a state, the legal blueprint for individual liability of the international crime has remained much divided. In 1994, the International Law Commission, through the General Assembly Ad Hoc and Preparatory Committee on the establishment of an International Criminal Court (ICC), prepared the draft Code of Crimes against the Peace and Security of Mankind. The Code defined aggression as the individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, and thus a crime whose definition is dependent on the 1974 definition of state aggression. [4]

The adoption of a definition of the crime of aggression in the Rome Statute was originally prevented in part by the lack of agreement on whether it should be limited to wars of aggression, or extended to other forms of use of force. In consequence, the jurisdiction of the ICC in crimes of aggression was ‘previewed’ once a definition is reached.[5]

In 2010, the Review Conference of the Rome Statute adopted in Kampala a definition of the international crime of aggression, as well as defined the jurisdictional capacity of the ICC against its perpetration. Both measures are pursued through amendments to the Rome Statute of the ICC and are foreseen to be operational by 2017. [6]

However, the adoption of the individual definition of aggression appears to continue to clash with the role reserved to the Security Council. The conflict is apparent when it comes to defining the capacity of the ICC to act upon instances of aggression, in the absence of action by the Security Council.[7] The Security Council is the organ of the international community that is primarily responsible for the maintenance of international peace and security, as defined in the UN Charter and recognized in the Rome Statute, and determines the act of aggression and the measures to be applied, as laid down in Chapter VII of the UN Charter. As a consequence, the exclusivity of the Security Council’s role in collective defense appears to be a stumbling block for individual criminal liability on aggression. Nevertheless, no mention can be found in either the UN Charter or the Rome Statute establishing ‘exclusive’ and not ‘primary’ capacity in this area for the Security Council.[8]

All in all, an inclusive ius contra bellum approach could be used to establish a role with regard to matters affecting international peace and security for the General Assembly, and thus grant it competence to determine whether a state has committed an act of aggression. Besides the political organs, the International Court of Justice also has the competence to determine the existence of aggression by evaluating the violation of the prohibition of the use of force as can be seen in the Nicaragua and Oil Platforms cases.[9]

The definition and prosecution of the crime of aggression must be consistent with the above mentioned institutions and instruments. The UN Security Council must be able to respond to acts of aggression and facilitate the mandate of the ICC to prosecute perpetrators. Subsidiary institutional control may also be instrumental for the exercise of competencies over such a controversial matter, and therefore create an international system of checks-and-balances where new bodies such as the UN Human Rights Council should have a say.[10]

In this manner, the international security regime would be reinforced by individual criminal responsibility in cases of international crimes of aggression, and hence would increase the system’s interdependency that could assist to neutralize the incapacities inherited, while in a wider perspective allow the consequent internal renewal.

In other terms, a system adjusted to the contemporary challenges and institutional framework of the new international law.

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[1] C. Kress, The Crime of Aggression before the First Review of the ICC Statute, Leiden Journal of International Law (2007) at 856; A. Cassese, On Some Problematic Aspects of the Crime of Aggression, Leiden Journal of International Law 845.7 (2007).

[2] General Assembly Resolution 95 (I), Affirmation of the Principles o International Law recognized by the Charter of the Nuremberg Tribunal. General Assembly Resolution 3314, Definition of Aggression.

[3] A. Cassese, On Some Problematic Aspects of the Crime of Aggression, Leiden Journal of International Law 841-2 (2007).

[4] Draft Code of Crimes against the Peace and Security of Mankind (1996); Yearbook of the International Law Commission (1996).

[5] C. Keith, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, American Journal of International Law 773 (2000); N. Blokker, The Crime of Aggression and the United Nations Security Council, Leiden Journal of International Law 869-75 (2007); F. Kalshoven, L. Zegveld, Constraints on the Waging of War, International Committee of the Red Cross 189 (2001); A. Cassese, On Some Problematic Aspects of the Crime of Aggression, Leiden Journal of International Law 841-3 (2007); Article 5 (2) of the Rome Statute of the International Criminal Court: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations”.

[6] Resolution RC/Res.6 of June 2010; Depositary Notification C.N.651.2010 Treaties-8, of 29 November 2010.

[7] Article 15 bis (8) and Article 15 ter of the Rome Statute. See also Annex III of Resolution RC/Res.6 of June 2010

[8] Charter of the United Nations and the Rome Statute of the International Criminal Court.

[9] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986; Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgement of 6 November 2003.

[10] R. Clark, Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court, Leiden Journal of International Law 869-72 (2002); A. Cassese, On Some Problematic Aspects of the Crime of Aggression, Leiden Journal of International Law 843-4 (2007); C. Kress, The Crime of Aggression before the First Review of the ICC Statute, Leiden Journal of International Law 859-63 (2007); N. Blokker, The Crime of Aggression and the United Nations Security Council, Leiden Journal of International Law 876-94 (2007).