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Friday, December 21, 2012

Why the Gotovina Appeals Judgment Matters



When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region.  In Serbia, the decision was met with consternation, anger and resentment.  In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.

As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success.  The decision fueled resentment among Serbs who view the tribunal as victors’ justice.  And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare.  For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.

From a legal perspective, the Appeals decision is also a worrisome development.  The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality.  The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target.  These are simple principles, but they are difficult for courts to apply in practice.  Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY.  The Gotovina Trial Chamber Judgment was one of the few.  And now that verdict has been overturned. 

I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.

Turning to the principle of distinction, the Appeals Chamber concentrated its analysis on a 200-meter standard used by the Trial Chamber.  Under this standard, the Trial Chamber determined that artillery shells falling more than 200 meters from a legitimate military target constituted evidence of indiscriminate shelling of a residential area.  Although this standard was based on expert testimony heard during the trial, the Appeals Chamber noted that the standard is not one that can be found anywhere in international law.  The Trial Chamber appears to have basically made it up (or at the very least conferred upon it a significance it did not deserve).

There are two points here.  First, the majority and dissent in the Appeals Chamber agreed that the 200-meter standard was ill advised, though they disagreed about the consequence of this observation.  For the majority, the ill-advised 200-meter standard was the legal foundation for the entire Trial Chamber decision, without which the conviction crumbled.  For the dissent, the unfortunate 200-meter standard was just one aspect of the case against Gotovina, for which there was still a substantial foundation even without the 200-meter standard.

Second, was the 200 meter standard even necessary?  This might have been a situation where the Trial Chamber said too much, making themselves subject to reversal because they are articulated a legal standard (if it even was a legal standard) that was not defensible.  But what if they had articulated no legal standard at all?  What then?

How is this possible, you ask?  It is very possible.  The Trial Chamber could have examined the entire spectrum of facts, including the known location of military targets, the known location of civilian deaths, the number of civilian deaths, and then stated that these facts amounted to a legal conclusion of an indiscriminate attack against civilians or even a disproportionate attack against civilians.  Period.  Had the Trial Chamber done this, their decision would have been subject to less scrutiny, and might even have withstood the appeal.

There’s an irony here, of course, and one that I often point out to my students in other contexts.  When a court applies the law to the facts, they are obligated to state reasons for their decisions (although juries do not).  In announcing that decision, they justifiably feel compelled to articulate standards that explain the basis for that decision.  But when they do so, they often get reversed if the standard or legal theory is ill advised. 

This creates a law of perverse incentives.  Trial Chambers (and courts generally) should be as terse as possible with their explanations if they want to be successful.  Although this renders their decision-making process comparatively opaque, it might immunize them from eventual reversal on appeal.  But that’s not the type of judicial decision-making we want to encourage.

Tuesday, December 18, 2012

Bombshell Acquittal at the ICC

The ICC acquitted Mathieu Ngudjolo Chui today -- only the second case at the permanent court to go to a verdict.  For the Office of the Prosecutor, this gives them a 1-1 record (after the Lubanga guilty verdict).

Ngudjolo Chui was originally prosecuted with Katanga, but in a controversial decision last month, the ICC Trial Chamber decided to sever the two cases, announcing that a judgment in the matter of Ngudjolo Chui was forthcoming, while legal proceedings against Katanga would proceed.  Many observers speculated that this meant that the Trial Chamber was preparing to deliver an acquittal for Ngudjolo Chui, and this turned out to be exactly correct.

In today's decision announcing the acquittal, the Trial Chamber was confronted with several important legal issues, though the combined opinion mostly concentrates on the Office of the Prosecutor's inability to demonstrate beyond a reasonable doubt that Ngudjolo Chui was guilty of perpetrating international crimes.

The real action, however, was in a concurring opinion filed by Judge Christine Van den Wyngaert.  In her 34-page separate opinion, she tackled all of the crucial issues raised by the case, many of which were sidestepped by the full Trial Chamber's decision.

First, Van den Wyngaert argued that Article 25(3)(a) of the Rome Statute, which deals with perpetration "through another person," does not directly include Claus Roxin's famous theory of perpetration-through-an-organization, also known as Organisationsherrschaft.  Although Van den Wyngaert conceded that many cases described under this doctrine inevitably include perpetration through another person (since organizations are made up of individuals after all), she insisted that this was a factual element of the analysis, not a legal element of the doctrine.  In other words, Roxin's theory does not belong in Article 25(3)(a) of the Statute, and the correct legal standard is whether the defendant perpetrated the crime through another individual (or individuals), not whether the defendant perpetrated the crime through an organization.

Second, Van den Wyngaert also flat out rejected the new doctrine of indirect co-perpetration, which she described as a "radical expansion" of Article 25(3)(a).  The doctrine was created in previous decisions of the ICC by combining the pre-existing notions of indirect perpetration with co-perpetration, yielding a new hybrid notion of indirect co-perpetration, where multiple individuals cooperate together to direct a horizontal organization that carries out the crime.  There is nothing in the Rome Statute that mentions this doctrine.  I raised many skeptical questions about this new doctrine in my recent essay called "Second-Order Linking Principles", and I suggested that the new doctrine required far more doctrinal and theoretical justification than had previously been offered by either scholars or courts.  Van den Wyngaert has now concluded that such a justification, consistent with the text of the Rome Statute, is not possible.

Third, Van den Wyngaert offered a sophisticated analysis of the minimum standards for mens rea under the Rome Statute, and specifically rejected the application of dolus eventualis -- a civil law doctrine that closely resembles common-law recklessness (but may not be identical).  Indeed, she specifically picked up on the fact that the Lubanga Trial Judgment pretended to reject dolus eventualis but then offered a definition of the phrase "knowledge" that was so expansive (including the risk of future events) that it effectively smuggles in dolus eventualis through the back door.  Not many people have noticed this conceptual error in the Lubanga Trial Judgment, but Van den Wyngaert not only noticed the problem but hit the nail on the head.

At some point, the ICC Appeals Chamber will need to confront not just the fate of indirect co-perpetration, but also the fundamental question of the mens reas standards under the Rome Statute, and whether dolus eventualis qualifies.  When it does, hopefully the Appeals Chamber takes a close look at Van den Wyngaert's concurring opinion.

As for Ngudjolo Chui, the Trial Chamber ordered him released pending the prosecutor's appeal, although the release order (as well as the underlying acquittal) will be appealed to the Appeals Chamber.

Friday, November 30, 2012

Palestinian Statehood and the ICC


Yesterday the UN General Assembly voted to recognize Palestine as a non-member state, paving the way for full statehood for Palestine.  Although the legal status of Palestine has been a question of contention for years, the General Assembly vote may be the tipping point that brings Palestinian dreams of statehood to fruition.  Predictably, both the U.S. and Israel voted against the resolution.  A few close allies voted with U.S. and Israel (including Canada), though most allies simply abstained from the vote in order to avoid angering the U.S. and Israel.  The resolution passed by a wide margin, 138 in favor, 9 against, 41 abstaining.

What’s interesting is the arguments that the US has deployed against Palestinian statehood.  These arguments display a surprisingly central role for international criminal justice.

In particular, the US is concerned that the Palestinian Authority will now move to join the International Criminal Court as a signatory to the Rome Statute.  This would be the first move in an attempt by the Palestinian Authority to trigger the jurisdiction of the Court over crimes allegedly committed by Israel.  This would include scrutiny over Israeli bombing practices during the recent air war over the Gaza strip, and potentially previous conflicts as well.  Of course, this jurisdiction might also bring unwanted scrutiny over the indiscriminate rocket attacks that Hamas has launched against civilian centers in Israel, including Tel Aviv, an inquiry that the Palestinians may wish to avoid.  On the other hand, perhaps that would help delegitimize Hamas on the international stage, which is something the Palestinian Authority might indeed want.

Incidentally, the Palestinian Authority tried to trigger the ICC’s jurisdiction before, although its claim to statehood then was even weaker, and it simply deposited a "declaration" accepting the court's jurisdiction.  This move prompted a huge academic debate over whether the ICC's jurisdiction could be triggered in this manner by a proto-state like Palestine.  But even now, the Palestinian Authority may have some difficulty demonstrating its own statehood.  While recognition from the General Assembly is undoubtedly important and relevant, there is a control problem. Simply put, the Palestinian Authority has no control over Gaza City, which is controlled by Hamas.  In fact, Mahmoud Abbas isn’t even allowed inside the Gaza Strip, apparently.

Indeed, it appears clear that at least some countries voted in favor of the resolution to increase Abbas’ credibility and strengthen his hand against his more radical opponents in Hamas.  Supporting Abbas seems like the best chance for peace with Israel because the Palestinian Authority at least has a chance with negotiating a deal with Israel, unlike Hamas.  These are all pragmatic considerations that sound in realpolitik.

The last issue is the legal question of retroactivity.  Over at OJ, Kevin Heller notes that the Rome Statute allows a state party to grant retroactive jurisdiction to the court (for acts committed prior to the state's adoption of the Statute).  While this is true, it isn’t clear to me that a retroactive granting of jurisdiction would permit the ICC to exercise jurisdiction over acts that were committed before Palestine was even a state.  Of course, there doesn’t appear to be anything in the Rome Statute that precludes this possibility, but it certainly represents a far more expansive understanding of retroactive jurisdiction.  The answer depends, I think, on the deeper question of what ICC jurisdiction is meant to accomplish -- ending impunity for criminal conduct or helping to resolve international disputes that sparked international crimes.

Saturday, November 17, 2012

Gotovina Acquitted

The ICTY Appeals Chamber issued yesterday what may turn out to be one of its most important decisions ever.  The Chamber overturned the conviction of Gen. Gotovina of Croatia, prompting joy in Croatia but anger and consternation in Serbia.

The prosecution of Gotovina was one of few against higher Croatian military officials.  For the Office of the Prosecutor, if represented an important effort in showing that all sides of the conflict would be subject to judicial scrutiny for their conduct.

The decision hinged on Gotovina's mental state, and the Appeals Chamber's decision that there was insufficient evidence that Gen. Gotovina had purposefully targeted civilians while ordering his troops to shell particular locations.  I should add that the Trial Chamber's analysis of Gotovina's mental state waas strangely absent from the Trial Chamber Judgement, which was 1000+ pages but failed to adequately discuss the issue.  The Trial Chamber Judgement discussed his mental state relative to the mode of liability (joint criminal enterprise), but said little about his mental state for the underlying crime of targeting civilians.

There were vigorous dissents from the Appeals Chamber decision, which was obviously not unanimous.  The Appeals Chamber issued a mere oral summary during yesterday's hearing.  A written summary is available here.

UPDATE

The full written opinion of the Appeals Chamber decision can be found here.

Wednesday, November 7, 2012

James Stewart on Causation and Overdetermination

James Stewart has posted a new essay that sheds renewed light on an often overlooked problem in international criminal law.  Called "Overdetermined Atrocities," the essay was written for a special issue of the Journal of International Criminal Justice that is dedicated to its late founder, Judge and Professor Antonio Cassese.

In the essay, Stewart argues that the field has yet to confront a simple but profoundly disturbing paradox: since atrocities are committed by multiple individuals, the contribution rendered by any particular defendant is rarely a sine qua non of the crime's occurrence.  Rather, it is almost always the case that the crime would have occurred anyway without the defendant's contribution, because others involved in the event would have fulfilled the tasks carried out by the defendant.  Consequently, the defendant is not a "but-for" cause of the crime.

The philosophical literature has long battled this dilemma, which is referred to as the problem of overdetermination.  The classic thought experiment involves a firing squad with 10 members who all perform an execution by shooting at the prisoner.  Since the killing would have occurred anyway even if Person A had not participated in the execution, it is unclear whether Person A is an essential contributor to the event.  In fact, this is precisely the reason why firing squads were designed in this matter; it was thought that it would alleviate the guilt of the executioners by making each feel that they were not truly responsible for the result.

Of course, this results in a paradox.  If Person A is not responsible, then none of the others are responsible either because their situation is the same.  Hence no one is responsible for the event.  How can this be the case?

I urge readers to read Stewart's essay to evaluate his own preferred solution to the problem.  Here I want to concentrate on one element of the issue as it pertains to current doctrine at the ICC.  The doctrines of indirect perpetration and indirect co-perpetration require that the defendant make an essential contribution to the collective crime in order for liability to attach to the defendant.  As many scholars have noted, this yields a problem about the level of description.  If the defendant had not participated, a resulting crime would no doubt have occurred, but it would be slightly different from the crime that had occurred with the defendant's participation.  Should we call this the same crime or a different crime?  What is the line between the same crime and a "new" crime?  And does this exercise in description have normative significance for criminal responsibility?  It would be strange to think that responsibility should track this linguistic exercise.

The ICC might eventually revisit this issue.  For now, I would simply note that the Office of the Prosecutor has argued to the court that the "essential contribution" standard for indirect perpetration liability should be dropped in favor of a "substantial contribution" standard.  This would avoid the "sine qua non" problem of description that I have just elucidated, but the question is whether the substantial contribution requirement is strict enough.  Is simply removing the standard of the "essential contribution"and appropriate way of resolving ambiguities about how it should be applied?


Friday, November 2, 2012

Margulies on the Fate of Conspiracy

Peter Margulies has a great post over at Lawfare on the fate of conspiracy as a crime punishable before military commissions.  The D.C. Circuit recently ruled in Hamdan II that the crime of providing material support to terrorism could not be prosecuted before a military commission because it was not already a violation of the law of nations.  The same argument regarding conspiracy is now ripe for review in the Bahlul case and will presumably reach the D.C. Circuit as well.  How will the judges rule?

Margulies analyzes the fate of conspiracy and concludes that it might have a brighter future with the D.C. Circuit than material support. Whether this prediction comes true or not, one of the things that I like most about his analysis is that he takes great pains to distinguish between conspiracy as an inchoate offense and conspiracy as a mode of liability, and that the analysis might be different for each one.  (For a different prediction, see Kevin Heller's post at Opinio Juris).

Conspiracy is a separate offense when it is charged as a distinct crime, and requires an agreement between two or more individuals to commit an unlawful act.  As an inchoate offense, the crime to which the agreement is directed need not be completed for the conspirators to be guilty of conspiracy.  The act of agreement itself is the inchoate crime of conspiracy.  The inchoate crime gives prosecutors the advantage of early intervention in a burgeoning criminal endeavor, allowing them to charge individuals without having to wait for them to complete their criminal plan.

Conspiracy as a mode of liability is a way in which a crime can be perpetrated, and it provides a doctrinal avenue to establish the defendant's vicarious liability for the acts of his or her co-conspirators.  Therefore, all conspirators are guilty of murder (or terrorism) just as much as the one conspirator who pulls the trigger or detonates the bomb.  Consequently, conspiracy as a mode of liability requires someone to complete the underlying crime.  Under the federal doctrine of Pinkerton liability, a co-conspirator may be held responsible for the acts of co-conspirators that fall outside the scope of the original agreement or plan, just as long as those wayward actions were reasonably foreseeable.

Now here's the relevance of this distinction.  Conspiracy as an inchoate offense has been rejected in international criminal law, though there are pockets of uncertainty with regard to conspiracy to commit genocide, which is included in the Genocide Convention and the ICTY and ICTR Statutes (though excluded from the ICC Statute).  But otherwise, conspiracy is disfavored.  In his amicus brief before the Supreme Court in Hamdan I, George Fletcher referred to the inclusion of conspiracy to commit genocide in the ICTY and ICTR Statutes as the "afterglow of a dying concept".  (See also my analysis of conspiracy to commit genocide in the OUP Genocide Convention Commentary here.)

However, conspiracy as a mode of liability is a more complicated business, as Peter Margulies rightly notes.  There are a whole host of international doctrines that cover roughly the same ground as conspiracy, and might be functional analogues to conspiracy.  The most notable is Joint Criminal Enterprise, whose third variant (JCE III) is exactly the same as Pinkerton liability (up to and including the requirement of reasonable foreseeability).  Although the ICTY Appeals Chamber has consistently claimed  that JCE and conspiracy are wholly distinct, I view them as roughly similar, since JCE liability allows a conviction for participating in a joint crime and requires an agreed upon plan or endeavor.

If and when the issue of conspiracy comes before the D.C. Circuit, I hope the judges take the time to untangle the two strands of conspiracy, and carefully consider in their analysis the other international doctrines that are roughly equivalent to conspiracy as a mode of liability.


Friday, October 26, 2012

The American Obsession with the Concept of Support

A pair of recent court decisions have thrown into stark relief the continuing obsession by our governmental leaders with the legal category of "support"-- a concept that provides the foundation for much of the current legal architecture of the armed conflict with al Qaeda.  Moreover, even though courts continue to raise serious concerns with the concept in numerous different contexts, the Executive and legislative branches keep using it.  More importantly, I'm not even sure that the concept is needed any more, but for some reason Congress and the Administration are fixated on it.  

Let me explain.  The takeaway from all of this is that I wonder if "support" should be allowed to die a dignified death and put to rest with great thanks for the work that it has already performed, but with certain knowledge that its successors are better up to the challenge.

So let's start with the first problem with the concept of support:

In September, U.S. District Court Judge Kathrine Forrest issued an injunction preventing the government from enforcing the NDAA provision that authorizes the detention of any individual who "substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."  The passage of the NDAA was very controversial because it expressed a Congressional preference for military detention over regular civilian detention.

But the reason that Judge Forrest found that the provision was unconstitutional had little to do with due process concerns over military detention.  Rather, Judge Forrest concluded that the content and application of the phrase "substantially supported" was so vague as to raise First Amendment concerns. Since the government has refused to say that mere speech can never constitute substantial support, the plaintiffs in the case had argued that their journalistic activities might be considered substantial support and therefore their free speech rights were effectively chilled.  I suppose one reason the government does not wish to concede that mere speech can never constitute substantial support is that Anwar
Awlaki's al-Qaeda activity was largely confined to propaganda-filled speeches, though the government also maintains that he was directly involved in approving multiple terror attacks, including the attempted bombing of an airliner from Detroit to Amsterdam.  So it is a bit unclear why the government wouldn't just concede the issue.

After Judge Forrest found that the "substantial support" provision violated the First Amendment, she issued what amounted to a controversial injunction (controversial among experts in civil procedure and fed courts).  Instead of limiting the injunction to the parties to the case and preventing the U.S. government from applying it against the plaintiffs, the injunction applied to the government's conduct anywhere against anyone.  Whether a district court judge has the equitable power to do this is very questionable, as my colleague Mike Dorf explained, and at least one consequence is that the government was effectively forced to appeal the case to the Second Circuit, rather than simply let the case die because it had no interest in ever detaining the journalists who brought the case.

Now to the second problem with the concept of support.

Last week, a three-judge panel of the D.C. Circuit Court of Appeals, including some rather conservative judges, vacated Salim Hamdan's convicted for providing material support to al-Qaeda.  As you will recall, Hamdan's case went to the Supreme Court under the previous incarnation of the military commission system, and Justice Stevens wrote a majority opinion concluding that Hamdan's commission violated Common Article 3 of the Geneva Convention.  Under a reformed commission system, Hamdan was acquitted of conspiracy but convicted of providing material support, sentenced to time served, and promptly released to Yemen.

The D.C. Circuit has now thrown out the material support charge as well, concluding that "providing material support to terrorism" is not a recognizable offense under the international law of war and therefore not subject to trial by military commission for acts prior to 2006 (when Congress amended the statute creating the commissions).  The government all but conceded that providing material support was not a violation of the international law of war, but made the hokey argument that it violated the "U.S. common law of war" -- the unwritten body of law emerging from previous prosecutions before military commissions in the United States, mostly during the Civil War.  This is a strange argument, because the idea that each country has its own municipal law of war runs counter to the very reciprocal nature of the law of war as an international body of law that binds all parties to an armed conflict.  If each side has its own international law of war, that reciprocity vanishes.  In any event, the court rejected this argument and insisted that the correct sphere of reference was the international law of war, which has no concept of material support.

What's ironic about all of this is that the concept of support -- whether substantial or material -- just isn't that necessary, though for some reason the government continues to think that it is.  Within the context of detention, the courts have already applied such a wide interpretation of "membership" that almost all of the detainees could be detained by virtue of their membership in al-Qaeda or an al-Qaeda affiliate.  The D.C. Circuit has already embraced a "functional" definition of membership, which I've written about here, which includes anyone part of the al-Qaeda hierarchy or command structure -- i.e. any one who either gives or takes orders within the organization.  Detention on that basis alone would solve the problem in my view.  It renders detention based on substantial support superfluous.

As for criminal convictions, there are numerous other criminal provisions that could replace the crime of providing material support.  Of course, there's the concept of conspiracy, though that crime's days might be numbered before the D.C. Circuit as well, because several cases down the line (including Bahlul) raise this issue.  But even if the government does not rely on conspiracy, the government could rely on complicity and charge the defendants with aiding and abetting terrorist activity.  Perhaps the concern here by government officials is that complicity is a mode of liability, and not an inchoate offense, so it requires a completed offense before a prosecution is permitted.  But there are other inchoate offenses that could be used to get around this problem, including the doctrine of attempt.

Any by the way, even membership in a criminal organization is still a crime under U.S. criminal law (18 USC § 2385) and even has a precedent at Nuremberg (see Altstötter), making it a tantalizing possibility (though it raises other problems). Incidentally, people often assume that crimes of membership would violate the Constitution, but the leading Supreme Court cases on the subject never declared them unconstitutional, they simply held that convictions must be limited to cases of "active" membership with intent.  Or, if one is concerned with membership as a criminal category because it is based on status rather than conduct, the doctrine of attempt certainly solves that problem.

The whole obsession with the concept of support is ill-considered and ought to be radically re-thought.

Sunday, October 14, 2012

This Just In: Humanity Itself Wins Nobel Peace Prize

Or maybe they could have given it to the concept of peace.  That's arguably even more important to the values of the Nobel than the EU.  Or maybe to the concept of life (because death is bad, isn't it?).  OK, maybe the headline is a bit unfair.  

On the one hand, I can completely understand the rationale behind the Nobel Committee's decision to award the Nobel Prize for Peace to the European Union.  It is certainly indisputable that during the first half of the 20th Century -- not long ago -- the continent of Europe was home to the worst atrocities on the globe.  Its violence gave birth to Nuremberg and the very field in which I work, international criminal law.  Now, as the Committee said, war between France and Germany is unthinkable.  In fact, France and Germany are now closer to each other (diplomatically) than they are to the United States, which is increasingly marginalized because of how it pursues its armed conflict with al-Qaeda.  

This remarkable transformation is cause for celebration and certainly deserving of a Nobel.  The question is who is responsible for this development, and whether an organization itself -- the EU -- is the best recipient.  Bill Schabas argues on his blog that the Council of Europe was more responsible for peace on the continent, though nobody knows much about the Council of Europe (except lawyers).  Others complained that the award did not go to an individual.  And in terms of organizations, the EU is about as impersonal as it can get.  Who will accept the award?  Will all of Europe attend the ceremony?  The cooks at the banquet better start cooking now.  And what would they serve?  This brings to mind Gen. Charles de Gaulle's famous quip, “How can you govern a country which has 246 varieties of cheese?” 

It seems to me that the decision was less about which organization deserved the award and more about which organization would receive the most benefit from the Nobel, a similar rationale that animated the decision to give the award to Obama in 2009.  The path to political peace in Europe was already well under way before the EU was created.  And the EU is an economic union anyway, not really a political union.  Of course, some will argue that economic integration in Europe created the very peace and stability that we enjoy on that continent today.  But the opposite sounds equally plausible to me: economic integration was only possible because of a pre-existing diplomatic structure of peace and disarmament.  No country engages in substantial trade with a country they are fighting in a war.  

Clearly, the committee hopes that giving the Nobel to the EU will fortify the union at a time when it faces a crossroads.  The euro-crisis, resentment in Germany over their bailout of Greece, and resentment in Greece over externally imposed austerity measures have all conspired to worsen the European debt crisis and shake global confidence in the future of a unified Europe.  The committee wanted to insert itself into that debate -- an idea that is very controversial in Norway since there is substantial opposition to the EU among Norwegians who have voted twice against joining the union.

Monday, October 1, 2012

Lohengrin Returns!

The Supreme Court term opens today (Monday) with the re-argument of the Kiobel case, which will help determine the scope of the Alien Tort Statute (ATS), which allows non-Americans to sue in US courts for violations of international law.   When Kiobel first came before the Supreme Court, the case was briefed and argued as case about corporate aiding and abetting, which is how the Second Circuit Court of Appeals had resolved the case.  Sitting en banc, the Second Circuit held that corporations could not be sued under the ATS for aiding and abetting human rights abuses because corporations are not subjects of international law.  But when the appeal was first heard by the Supreme Court last year, the justices showed little interest in discussing corporate liability, and instead wanted to know why U.S. courts should have jurisdiction over human rights lawsuits, filed by non-citizens, that have no discernible connection to the United States.  The lawyers were somewhat blindsided by this development, and after the justices' conference, the case was calendared for re-briefing and re-argument this term.

So here we are.  As my colleague Mike Dorf notes in an excellent post this morning, the ATS was referred to by Judge Friendly as a "judicial Lohengrin" because "no one seems to know whence it came."  Although the ATS was included in the famous Judiciary Act of 1789 which created the lower federal courts, the legislative rationale for the provision remains mysterious and there is little legislative history that might shed light on the question. 

This makes the ATS a "Lohengrin" because Lohengrin is the title character from a Richard Wagner opera, itself based on a famous story that has appeared in many different versions throughout German literature.  In the opera, Lohengrin's origins are a complete mystery until the end of the story, when his provenance is revealed (in fact his father is Parsifal, on which another Wagner opera is based).  The origins of the ATS were just as mysterious -- one can only hope that the Supreme Court's case will have better luck unearthing its rationale.

In my opinion, the Lohengrin metaphor (which has been repeated by many academics) extends far deeper than most people realize and might actually shed some light on how the Supreme Court is going to approach the issue.  Let me explain why.

One day, Elsa is accused by her guardian, Count Telramund, of murdering her own brother, Gottfried, who is the rightful heir to the throne of the kingdom and has gone missing.  

Elsa requests a trial by combat (an interesting example of Jim Whitman's fascinating new book called The Verdict of Battle).  Her guilt or innocence will be determined by a duel, and Count Telramund asks who she has selected to fight on her behalf.  She responds that she had a dream that she would be saved by a knight, who in fact appears before her, and agrees to fight Count Telramund on her behalf on condition that she not ask about his identity or origin.

The knight defeats Count Telramund in the duel, but does not kill him.  So Elsa is vindicated and declared innocent.  She falls in love with the knight and he proposes marriage, which she accepts.

Meanwhile, Count Telramund schemes to take over the kingdom, and also schemes with his wife to find a way to get Elsa to ask the knight for his identity and origin, knowing that this will destroy the marriage.  Count Telramund and his wife sow seeds of doubt in Elsa's mind in order to trick her to ask the knight the forbidden questions.

Elsa finally does ask him.  Meanwhile Count Telramund's coup attempt has finally been set in motion, and when his troops storm the castle, Elsa throws a sword to the knight, who uses it to kill Count Telramund and stop the coup.  The knight reports to the king that he has stopped the coup attempt, but he must now return to his homeland, the temple of the Holy Grail, because he has revealed his identity as Lohengrin.

But before he departs, Lohengrin prays, bringing back Elsa's brother, Gottfried.  Gottfried was never dead at all.  He had been turned into a swan by Count Telramund's wife who practices witchcraft.  Upon seeing Gottfried being transformed back from being a swan, Telramund's wife dies.  And Elsa, heartbroken over Lohengrin's departure, dies as well. 

Now here's the moral that I take from this story, which I think is very relevant to the judicial function of the ATS.  Lohengrin is an outsider that comes to vindicate Elsa and bring her justice.  And this he does remarkably well: he wins her battle/trial and she is declared innocent of her brother's murder.  Not only that, but Lohengrin also completes the task by bringing her brother back to life, and saves the kingdom from Count Telramund's treachery. 

However, this judicial intervention, by an outsider, comes with many costs, and Elsa ends up heartbroken and dead when she is unwilling or unable to live up to the conditions.  And Lohengrin must sacrifice much too.  It isn't easy being the far-away vindicator of a kingdom's disputes.

This is precisely what the ATS is all about.  The Statue provides, at least in its post-Filartiga instantiation, a forum in the US to settle disputes and vindicate the human rights of litigants in distant lands.  However, when the US exercises this type of universal jurisdiction, it comes with great costs.

If I were a clerk working for one of the conservative justices seeking to trim back on the alleged excesses of ATS litigation, here's how I would pitch the argument.  Back in Sosa v. Alvarez-Machain, in 2004, the Supreme Court invoked Blackstone for the proposition that the ATS was designed to offer a domestic remedy for international violations because doing so was sometimes necessary to stop an international crisis from erupting.  However, ATS cases have gotten out of hand, and US courts are now intervening in cases all around the world, potentially irking foreign governments and courts, and in the process creating the very rifts that the ATS was designed to avoid.  In order to vindicate the original Blackstonian rationale for the ATS as expressed in Sosa v. Alvarez-Machain, we need to limit ATS jurisdiction to cases that have at least some connection to US territory.  Or so I think the conservative justices will argue.  (I am not endorsing this view, just explaining it.)

On this theory, although we might be tempted to use the federal judiciary, like Lohengrin the outsider, to vindicate foreign rights violations, such interventions are messy and result in tremendous heartache and death.

Wednesday, September 19, 2012

Harold Koh on Cyber-Attacks

U.S. State Department Legal Advisor Harold Koh spoke at the USCYBERCOM Inter-Agency Legal Conference in Ft. Meade, MD, on September 18, 2012, regarding the law of cyberspace.  This is the State Department's first full-length statement regarding the appropriate legal regime governing cyber-attacks.  I'll have more to say on this shortly, but until now here is the full text of the speech, which is also available here.



As prepared for delivery
Thank you, Colonel Brown, for your kind invitation to speak here today at this very important conference on “the roles of cyber in national defense.” I have been an international lawyer for more than thirty years, a government lawyer practicing international law for more than a decade, and the State Department’s Legal Adviser for nearly 3 ½ years. While my daily workload covers many of the bread and butter issues of international law—diplomatic immunity, the law of the sea, international humanitarian law, treaty interpretation—like many of you, I find more and more of my time is spent grappling with the question of how international law applies in cyberspace.
Everyone here knows that cyberspace presents new opportunities and new challenges for the United States in every foreign policy realm, including national defense. But for international lawyers, it also presents cutting-edge issues of international law, which go to a very fundamental question: how do we apply old laws of war to new cyber-circumstances, staying faithful to enduring principles, while accounting for changing times and technologies?
Many, many international lawyers here in the U.S. Government and around the world have struggled with this question, so today I’d like to present an overview of how we in the U.S. Government have gone about meeting this challenge. At the outset, let me highlight that the entire endeavor of applying established international law to cyberspace is part of a broader international conversation. We are not alone in thinking about these questions; we are actively engaged with the rest of the international community, both bilaterally and multilaterally, on the subject of applying international law in cyberspace.
With your permission, I’d like to offer a series of questions and answers that illuminate where we are right now – in a place where we’ve made remarkable headway in a relatively short period of time, but are still finding new questions for each and every one we answer. In fact, the U.S. Government has been regularly sharing these thoughts with our international partners. Most of the points that follow we have not just agreed upon internally, but made diplomatically, in our submissions to the UN Group of Governmental Experts (GGE) that deals with information technology issues.
I. International Law in Cyberspace: What We Know
So let me start with the most fundamental questions:
Question 1: Do established principles of international law apply to cyberspace?
Answer 1: Yes, international law principles do apply in cyberspace. Everyone here knows how cyberspace opens up a host of novel and extremely difficult legal issues. But on this key question, this answer has been apparent, at least as far as the U.S. Government has been concerned. Significantly, this view has not necessarily been universal in the international community. At least one country has questioned whether existing bodies of international law apply to the cutting edge issues presented by the internet. Some have also said that existing international law is not up to the task, and that we need entirely new treaties to impose a unique set of rules on cyberspace. But the United States has made clear our view that established principles of international law do apply in cyberspace.
Question 2: Is cyberspace a law-free zone, where anything goes?
Answer 2: Emphatically no. Cyberspace is not a “law-free” zone where anyone can conduct hostile activities without rules or restraint.
Think of it this way. This is not the first time that technology has changed and that international law has been asked to deal with those changes. In particular, because the tools of conflict are constantly evolving, one relevant body of law – international humanitarian law, or the law of armed conflict – affirmatively anticipates technological innovation, and contemplates that its existing rules will apply to such innovation. To be sure, new technologies raise new issues and thus, new questions. Many of us in this room have struggled with such questions, and we will continue to do so over many years. But to those who say that established law is not up to the task, we must articulate and build consensus around how it applies and reassess from there whether and what additional understandings are needed. Developing common understandings about how these rules apply in the context of cyberactivities in armed conflict will promote stability in this area.
That consensus-building work brings me to some questions and answers we have offered to our international partners to explain how both the law of going to war (jus ad bellum) and the laws that apply in conducting war (jus in bello) apply to cyberaction:
Question 3: Do cyber activities ever constitute a use of force?
Answer 3: YesCyber activities may in certain circumstances constitute uses of force within the meaning of Article 2(4) of the UN Charter and customary international law. In analyzing whether a cyber operation would constitute a use of force, most commentators focus on whether the direct physical injury and property damage resulting from the cyber event looks like that which would be considered a use of force if produced by kinetic weapons. Cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as a use of force. In assessing whether an event constituted a use of force in or through cyberspace, we must evaluate factors: including the context of the event, the actor perpetrating the action (recognizing challenging issues of attribution in cyberspace), the target and location, effects and intent, among other possible issues. Commonly cited examples of cyber activity that would constitute a use of force include, for example: (1) operations that trigger a nuclear plant meltdown; (2) operations that open a dam above a populated area causing destruction; or (3) operations that disable air traffic control resulting in airplane crashes. Only a moment’s reflection makes you realize that this is common sense: if the physical consequences of a cyber attack work the kind of physical damage that dropping a bomb or firing a missile would, that cyber attack should equally be considered a use of force.
Question 4: May a State ever respond to a computer network attack by exercising a right of national self-defense?
Answer 4: YesA State’s national right of self-defense, recognized in Article 51 of the UN Charter, may be triggered by computer network activities that amount to an armed attack or imminent threat thereof.As the United States affirmed in its 2011 International Strategy for Cyberspace, “when warranted, the United States will respond to hostile acts in cyberspace as we would to any other threat to our country.”
Question 5: Do jus in bello rules apply to computer network attacks?
Answer 5: Yes. In the context of an armed conflict, the law of armed conflict applies to regulate the use of cyber tools in hostilities, just as it does other tools. The principles of necessity and proportionality limit uses of force in self-defense and would regulate what may constitute a lawful response under the circumstances. There is no legal requirement that the response to a cyber armed attack take the form of a cyber action, as long as the response meets the requirements of necessity and proportionality.
Question 6: Must attacks distinguish between military and nonmilitary objectives?
Answer 6: Yes. The jus in bello principle of distinction applies to computer network attacks undertaken in the context of an armed conflict. The principle of distinction applies to cyber activities that amount to an “attack” – as that term is understood in the law of war – in the context of an armed conflict. As in any form of armed conflict, the principle of distinction requires that the intended effect of the attack must be to harm a legitimate military target. We must distinguish military objectives – that is, objects that make an effective contribution to military action and whose destruction would offer a military advantage – from civilian objects, which under international law are generally protected from attack.
Question 7: Must attacks adhere to the principle of proportionality?
Answer 7: Yes. The jus in bello principle of proportionality applies to computer network attacks undertaken in the context of an armed conflict. The principle of proportionality prohibits attacks that may be expected to cause incidental loss to civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated. Parties to an armed conflict must assess what the expected harm to civilians is likely to be, and weigh the risk of such collateral damage against the importance of the expected military advantage to be gained. In the cyber context, this rule requires parties to a conflict to assess: (1) the effects of cyber weapons on both military and civilian infrastructure and users, including shared physical infrastructure (such as a dam or a power grid) that would affect civilians; (2) the potential physical damage that a cyber attack may cause, such as death or injury that may result from effects on critical infrastructure; and (3) the potential effects of a cyber attack on civilian objects that are notmilitary objectives, such as private, civilian computers that hold no military significance, but may be networked to computers that are military objectives.
Question 8: How should States assess their cyber weapons?
Answer 8: States should undertake a legal review of weapons, including those that employ a cyber capability. Such a review should entail an analysis, for example, of whether a particular capability would beinherently indiscriminatei.e., that it could not be used consistent with the principles of distinction and proportionality. The U.S. Government undertakes at least two stages of legal review of the use of weapons in the context of armed conflict – first, an evaluation of new weapons to determine whether their use would beper se prohibited by the law of war; and second, specific operations employing weapons are always reviewed to ensure that each particular operation is also compliant with the law of war.
Question 9: In this analysis, what role does State sovereignty play?
Answer 9: States conducting activities in cyberspace must take into account the sovereignty of other States, including outside the context of armed conflict. The physical infrastructure that supports the internet and cyber activities is generally located in sovereign territory and subject to the jurisdiction of the territorial State. Because of the interconnected, interoperable nature of cyberspace, operations targeting networked information infrastructures in one country may create effects in another country. Whenever a State contemplates conducting activities in cyberspace, the sovereignty of other States needs to be considered.
Question 10: Are States responsible when cyber acts are undertaken through proxies?
Answer 10: YesStates are legally responsible for activities undertaken through “proxy actors,” who act on the State’s instructions or under its direction or control. The ability to mask one’s identity and geography in cyberspace and the resulting difficulties of timely, high-confidence attribution can create significant challenges for States in identifying, evaluating, and accurately responding to threats. But putting attribution problems aside for a moment, established international law does address the question of proxy actors. States are legally responsible for activities undertaken through putatively private actors, who act on the State’s instructions or under its direction or control. If a State exercises a sufficient degree of control over an ostensibly private person or group of persons committing an internationally wrongful act, the State assumes responsibility for the act, just as if official agents of the State itself had committed it. These rules are designed to ensure that States cannot hide behind putatively private actors to engage in conduct that is internationally wrongful.
II. International Law in Cyberspace: Challenges and Uncertainties
These ten answers should give you a sense of how far we have come in doing what any good international lawyer does: applying established law to new facts, and explaining our positions to other interested lawyers. At the same time, there are obviously many more issues where the questions remain under discussion. Let me identify three particularly difficult questions that I don’t intend to answer here today. Instead, my hope is to shed some light on some of the cutting-edge legal issues that we’ll all be facing together over the next few years:
Unresolved Question 1: How can a use of force regime take into account all of the novel kinds of effectsthat States can produce through the click of a button?
As I said above, the United States has affirmed that established jus ad bellum rules do apply to uses of force in cyberspace. I have also noted some clear-cut cases where the physical effects of a hostile cyber action would be comparable to what a kinetic action could achieve: for example, a bomb might break a dam and flood a civilian population, but insertion of a line of malicious code from a distant computer might just as easily achieve that same result. As you all know, however, there are other types of cyber actions that do not have a clear kinetic parallel, which raise profound questions about exactly what we mean by “force.” At the same time, the difficulty of reaching a definitive legal conclusion or consensus among States on when and under what circumstances a hostile cyber action would constitute an armed attack does not automatically suggest that we need an entirely new legal framework specific to cyberspace. Outside of the cyber-context, such ambiguities and differences of view have long existed among States.
To cite just one example of this, the United States has for a long time taken the position that the inherent right of self-defense potentially applies against any illegal use of force. In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that may warrant a forcible response. But that is not to say that any illegal use of force triggers the right to use any and all force in response – such responses must still benecessary and of course proportionate. We recognize, on the other hand, that some other countries and commentators have drawn a distinction between the “use of force” and an “armed attack,” and view “armed attack” – triggering the right to self-defense – as a subset of uses of force, which passes a higher threshold of gravity. My point here is not to rehash old debates, but to illustrate that States have long had to sort through complicated jus ad bellum questions. In this respect, the existence of complicated cyber questions relating tojus ad bellum is not in itself a new development; it is just applying old questions to the latest developments in technology.
Unresolved Question 2: What do we do about “dual-use infrastructure” in cyberspace?
As you all know, information and communications infrastructure is often shared between State militaries and private, civilian communities. The law of war requires that civilian infrastructure not be used to seek to immunize military objectives from attack, including in the cyber realm. But how, exactly, are the jus in bellorules to be implemented in cyberspace? Parties to an armed conflict will need to assess the potential effects of a cyber attack on computers that are not military objectives, such as private, civilian computers that hold no military significance, but may be networked to computers that are valid military objectives. Parties will also need to consider the harm to the civilian uses of such infrastructure in performing the necessary proportionality review. Any number of factual scenarios could arise, however, which will require a careful, fact-intensive legal analysis in each situation.
Unresolved Question 3: How do we address the problem of attribution in cyberspace?
As I mentioned earlier, cyberspace significantly increases an actor’s ability to engage in attacks with “plausible deniability,” by acting through proxies. I noted that legal tools exist to ensure that States are held accountable for those acts. What I want to highlight here is that many of these challenges – in particular, those concerning attribution – are as much questions of a technical and policy nature rather than exclusively or even predominantly questions of law. Cyberspace remains a new and dynamic operating environment, and we cannot expect that all answers to the new and confounding questions we face will be legal ones.
These questions about effects, dual use, and attribution are difficult legal and policy questions that existed long before the development of cyber tools, and that will continue to be a topic of discussion among our allies and partners as cyber tools develop. Of course, there remain many other difficult and important questions about the application of international law to activities in cyberspace – for example, about the implications of sovereignty and neutrality law, enforcement mechanisms, and the obligations of States concerning “hacktivists” operating from within their territory. While these are not questions that I can address in this brief speech, they are critically important questions on which international lawyers will focus intensely in the years to come.
And just as cyberspace presents challenging new issues for lawyers, it presents challenging new technical and policy issues. Not all of the issues I’ve mentioned are susceptible to clear legal answers derived from existing precedents – in many cases, quite the contrary. Answering these tough questions within the framework of existing law, consistent with our values and accounting for the legitimate needs of national security, will require a constant dialogue between lawyers, operators, and policymakers. All that we as lawyers can do is to apply in the cyber context the same rigorous approach to these hard questions that arise in the future, as we apply every day to what might be considered more traditional forms of conflict.
III. The Role of International Law in a “Smart Power” Approach to Cyberspace
This, in a nutshell, is where we are with regard to cyberconflict: We have begun work to build consensus on a number of answers, but questions continue to arise that must be answered in the months and years ahead. Beyond these questions and answers and unresolved questions, though, lies a much bigger picture, one that we are very focused on at the State Department. Which brings me to my final two questions:
Final Question 1: Is international humanitarian law the only body of international law that applies in cyberspace?
Final Answer 1: No. As important as international humanitarian law is, it is not the only international law that applies in cyberspace.
Obviously, cyberspace has become pervasive in our lives, not just in the national defense arena, but also through social media, publishing and broadcasting, expressions of human rights, and expansion of international commerce, both through online markets and online commercial techniques. Many other bodies of international and national law address those activities, and how those different bodies of law overlap and interact with the laws of cyber conflict is something we will all have to work out over time.
Take human rights. At the same time that cyber activity can pose a threat, we all understand that cyber-communication is increasingly becoming a dominant mode of expression in the 21st century. More and more people express their views not by speaking on a soap box at Speakers’ Corner, but by blogging, tweeting, commenting, or posting videos and commentaries. The 1948 Universal Declaration of Human Rights (UDHR) – adopted more than 70 years ago – was remarkably forward-looking in anticipating these trends. It says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (emphasis added) In short, all human beings are entitled to certain rights, whether they choose to exercise them in a city square or an internet chat room. This principle is an important part of our global diplomacy, and is encapsulated in the Internet Freedom agenda about which my boss, Secretary Clinton, has spoken so passionately.
You all know of this Administration’s efforts not just in the areas of cyberconflict, but also in many other cyber areas: cybersecurity, cybercommerce, fighting child pornography and other forms of cybercrime. stopping intellectual property piracy, as well as promoting free expression and human rights. So the cyberconflict issues with which this group grapples do not constitute the whole of our approach to cyberspace; they are an important part – but only a part –of this Administration’s broader “smart power” approach to cyberspace.
What I have outlined today are a series of answers to cyberspace questions that the United States is on the record as supporting. I have also suggested a few of the challenging questions that remain before us, and developments over the next decade will surely produce new questions. But you should not think of these questions and answers as just a box to check before deciding whether a particular proposed operation is lawful or not. Rather, these questions and answers are part of a much broader foreign policy agenda, which transpires in a broader framework of respect for international law.
That leads to my Final Question for this group: Why should U.S Government lawyers care about international law in cyberspace at all?
The Answer: Because compliance with international law frees us to do more, and do more legitimately, in cyberspace, in a way that more fully promotes our national interests. Compliance with international law in cyberspace is part and parcel of our broader “smart power” approach to international law as part of 
U.S. foreign policy.
It is worth noting two fundamentally different philosophies about international law. One way to think about law, whether domestic or international, is as a straitjacket, a pure constraint. This approach posits that nations have serious, legitimate interests, and legal regimes restrict their ability to carry them out. One consequence of this view is that, since law is just something that constrains, it should be resisted whenever possible. Resisting so-called “extensions” of the law to new areas often seems attractive: because, after all, the old laws weren’t built for these new challenges anyway, some say, so we should tackle those challenges without the legal straitjacket, while leaving the old laws behind.
But that is not the United States Government’s view of the law, domestic or international. We see law not as a straitjacket, but as one great university calls it when it confers its diplomas, a body of “wise restraints that make us free.” International law is not purely constraint, it frees us and empowers us to do things we could never do without law’s legitimacy. If we succeed in promoting a culture of compliance, we will reap the benefits. And if we earn a reputation for compliance, the actions we do take will earn enhanced legitimacy worldwide for their adherence to the rule of law.
These are not new themes, but I raise them here because of they resonate squarely with the strategy we have been pursuing in cyberspace over the past few years. Of course, the United States has impressive cyber-capabilities; it should be clear from the bulk of my discussion that adherence to established principles of law does not prevent us from using those capabilities to achieve important ends. But we also know that we will be safer, the more that we can rally other States to the view that these established principles do impose meaningful constraints, and that there is already an existing set of laws that protect our security in cyberspace. And the more widespread the understanding that cyberspace follows established rules – and that we live by them – the stronger we can be in pushing back against those who would seek to introduce brand new rules that may be contrary to our interests.
That is why, in our diplomacy, we do not whisper about these issues. We talk openly and bilaterally with other countries about the application of established international law to cyberspace. We talk about these issuesmultilaterally, at the UN Group of Governmental Experts and at other fora, in promoting this vision of compliance with international law in cyberspace. We talk about them regionally, as when we recently co-sponsored an ASEAN Regional Forum event to focus the international community’s attention on the problem of proxy actors engaging in unlawful conduct in cyberspace. Preventing proxy attacks on us is an important interest, and as part of our discussions we have outlined the ways that existing international law addresses this problem.
The diplomacy I have described is not limited to the legal issues this group of lawyers is used to facing in the operational context. These issues are interconnected with countless other cyber issues that we face daily in our foreign policy, such as cybersecurity, cyber-commerce, human rights in cyberspace, and public diplomacy through cybertools. In all of these areas, let me repeat again, compliance with international law in cyberspace is part and parcel of our broader smart power approach to international law as part of U.S. foreign policy. Compliance with international law – and thinking actively together about how best to promote that compliance – can only free us to do more, and to do more legitimately, in the emerging frontiers of cyberspace, in a way that more fully promotes our U.S. national interests.
Thank you very much.