[Matt Brown is a current LLM student at Leiden University, studying Public International Law, with a specific interest in international criminal law, transitional justice and cultural heritage law. He tweets about these and other topics @_mattbrown.]

The International Criminal Court concerns itself with the ‘most serious crimes of concern to the international community.’ Often we understand this term to reflect examples such as the atrocities currently taking place in Syria, where the specific target is human and impact is measured by death toll. Last weekend’s surrender of Mr Ahmad Al Mahdi Al Faqi to the ICC however, challenges us to rethink our conception of war crimes to include the broader, but often forgotten concept of cultural destruction. It also serves as a positive example of domestic cooperation with the Court as it was Niger who transferred Mr Al Faqi to the Court.

Mr Al Faqi is suspected under Article 8 (2) (e) (iv) ‘of committing war crimes in Timbuktu between 30^th June and 10^th July 2012, through ‘intentionally directing attacks against buildings dedicated to religion and or historical monuments’. Specifically, the charges relate to the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu and form part of the Court’s three-year interest in Mali, originating from Mali’s self-referral in 2012. To this day, UNESCO is working with other international actors and local groups to rebuild the mausoleums.

This case, although a first for the ICC, builds upon a body of law developed by the ICTY. This includes the Pavle Strugar case, where Strugar was found guilty on the basis of superior criminal responsibility for the ‘destruction of institutions dedicated to, inter alia, religion, and the arts and sciences’. International Criminal Law’s approach to cultural heritage has several drawbacks, but chiefly it suffers from a fragmentation and hierarchical approach between instances of international armed conflict, non-international armed conflict and internal disturbances. The decision therefore of the ICC to prosecute ‘cultural crimes’ could help to consolidate the principles of cultural heritage law and bring greater consistency to the protections afforded between the different forms of conflict.

It also promises to resolve a second issue, namely that the enforcement of cultural heritage protection and subsequent prosecution is too often lacking. With the destruction that ISIS continues to cause in Palmyra, it offers a promising hint that if the jurisdictional issues that currently prevent prosecuting senior ISIS leaders can be overcome, the prosecution of cultural damage will be on the agenda.

Important questions remain however about the Court’s interpretation of the regrettably narrow Article 8 provision within the Rome Statute­­, which reflects the traditional and outdated interpretation of culture as constituting solely of tangible objects. This approach finds its roots in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which refers in Article 1 (a) to ‘movable or immovable property of great importance to the cultural heritage of every people’. This conception of culture based on the tangible nature of buildings, libraries, churches and historical sites is furthered in the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage that refers in Article 1 to monuments and architectural works of outstanding universal value. Reflecting a definition of cultural heritage heavily influenced by Western thought, steeped in the value of archeological, literary and scientific importance.

Even with the entry into force of the Convention for the Safeguarding of the Intangible Cultural Heritage, the charges reflect both a promising intention to bring the perpetrators of cultural destruction to justice, but equally illustrate the constructed nature of culture, which overlooks the intangible aspect of cultural heritage that cannot be rebuilt with simple bricks and mortar. This case will be interesting for a variety of reasons, but we can hope that it offers an opportunity to build on the Prosecutor’s acknowledgment that the charges reflect the ‘callous assault on the dignity and identity of entire populations and their religious and historic roots.’

We should consider this an important breakthrough in strengthening both the enforcement of cultural heritage law and the ICC itself. In dealing with a definition that is slowly emerging from decades of Western bias, this case offers the victims of cultural heritage destruction the chance to be heard and to push for greater recognition of the impact is has upon them as people(s). The ICC therefore has a golden opportunity to improve its reputation in Africa by listening to victims and demonstrating that international law is responsive to the voices and concerns of third-world approaches and can evolve to take account of these. The domestic co-operation between Mali, Niger and the Court to bring Mr Al Faqi to The Hague also offers great hope that the Court can work effectively with African State Parties, despite the recent problems it faced in South Africa.

This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.

Your weekly selection of international law and international relations headlines from around the world:

Africa

• At least 21 people were killed in the capital of Central African Republic on Saturday and around 100 others were wounded as Muslims attacked a mainly Christian neighborhood, senior hospital officials and a government spokesman said..
• A Norwegian-flagged ship that was held in Kenya for more than a week over undeclared weapons belonging to the United Nations has been released, the owners of the vessel said.

Middle East and Northern Africa

• Israel has targeted at least two military installations in air strikes in neighbouring Syria, according to the Israeli military.
• Russian President Vladimir Putin has warned that any attempts to overthrow the government in Syria could lead to a failed state like Iraq or Libya.
• Seventeen Syrian refugees, including five children, have drowned after their boat sank in Turkish waters on its way to Greece, according to local media reports.

Asia

• Japan, which accepted just 11 asylum seekers out of 5,000 applications last year, will provide about $810 million in aid in response to refugees fleeing Syria and Iraq, public broadcaster NHK reported on Monday.
• North Korea is planning another satellite launch next month, re-igniting fears that it is really testing a system to deliver nuclear weapons.

Europe

• France said Sunday it has launched its first airstrikes against ISIS in Syria in coordination with coalition partners, citing self-defense.
• The gap between Britons who want to remain in the European Union and those who want to leave remains tight ahead of a membership referendum due by the end of 2017, according to two opinion polls on Monday.
• Separatists on Sunday won a clear majority of seats in Catalonia’s parliament in an election that sets the region on a collision course with Spain’s central government over independence.

Americas

• Cuba’s President Raul Castro, speaking at the United Nations for the first time, on Saturday hailed renewed diplomatic ties with the United States as “major progress” but slammed a U.S. trade embargo as the top obstacle to Cuba’s economic development.
• The United Nations will open a human rights monitoring office in Honduras this year to guard against possible violations by security forces as they crack down on drug gangs, President Juan Hernandez said on Sunday.
• U.S. Secretary of State John Kerry said on Sunday it was vital to coordinate all efforts against the Islamic State militant group in the Middle East but this was not yet happening.

Oceania

• Australia has reconfirmed its desire for a seat on the UN’s powerful Human Rights Council; however, its international reputation has been battered by a UN human rights official postponing a trip to Australia because, he says, the government refused access to detention centres, and threatened “reprisals”, including jail, against people who spoke to him.
• There are growing calls for the New Zealand government to take action over the treatment of Kiwis held in Australian detention centres, coming after the death two weeks ago of New Zealand-born Junior Togatuki, who was being held in solitary confinement in Goulburn’s Supermax Prison in New South Wales.

UN/World

• The United Nations high commissioner for refugees said on Saturday the world waited far too long to respond to the refugee crisis sparked by the wars in Syria and elsewhere, though rich countries now appear to understand the scale of the problem.
• The United Nation’s 193 member countries on Friday adopted 17 Sustainable Development Goals (SDGs) as a roadmap to end poverty and hunger, fight inequality and conquer climate change over the next 15 years, or 800 weeks; as world leaders brandish a hard-fought new set of global goals designed to improve lives in all countries, the question of who foots the trillion-dollar bill remained open on Saturday as financial pledges started rolling in.
• It is high time the United Nations Security Council is reformed to reflect the real distribution of power across the world in the 21st century, German Chancellor Angela Merkel said on Saturday.

Announcements

• Queen’s University Belfast has announced a position for a Lecturer in Human Rights Law. The closing date on applications is 5 October 2015. See the vacancy here.

Calls for Papers/Abstracts:

• The American Society of International Law’s Lieber Society Announces a call for papers for the 2016 Richard R. Baxter Military Writing Prize. Persons submitting papers need not be ASIL members and can be citizens of any country but must be an active member of a state’s regular or reserve armed forces. Papers may address any aspect of international humanitarian law/law of armed conflict. Papers must be written in english and may not exceed 35 pages single spaced or 70 pages double spaced with 12 point font and 1inch/2.5 cm margins.  For more information, please contact Professor Chris Jenks at cjenks [at] smu [dot] edu. 
• Averting the Battle?: Conflict Prevention and State-to-State arbitration in the context of International Investments. This call for papers of the Conflict Resolution Quarterly (CRQ) is designed to encourage a scholarly discussion on the advantages and obstacles associated to the use of both conflict prevention mechanisms and State-to-State dispute arbitration in the context of international investments. All articles should include a 100-word abstract, reflect an understanding of previous discussions in the literature on the chosen question (a literature review), and range from 2500 to 7500 words in length. CRQ uses a double-blind peer review process to assure fair and equal access to all authors. The deadline for submissions is January 15th 2016. More information can be found here.  Additional questions can be submitted to the guest editors:  Katia Fach Gómez, Professor, Universidad de Zaragoza (Spain), katiafachgomez [at] gmail [dot] com, and Manuel A. Gómez, Professor, Florida International University, magomez [at] fiu [dot] edu.
• The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Summer ‘16 Special Issue of the Journal on Trade & Public Health (Vol. 8, No. 1). The manuscripts may be in the form of Articles, Notes, Comments, and Book Reviews. All manuscripts received by March 15, 2016, pertaining to any area within the purview of international economic law, will be reviewed by the editorial board for publication in the Summer ‘16 issue. TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world. Towards these ends, we have published works by noted scholars such as Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, Prof. E.U. Petersmann and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for three consecutive years and the 10th best trade journal worldwide by Washington and Lee University, School of Law [The Washington & Lee Rankings are considered to be the most comprehensive in this regard]. For more information, please go through the submission guidelines available here or write to us at editors [at] tradelawdevelopment [dot] com.
• Utrecht Journal of International and European Law is issuing a Call for Papers for its upcoming Special Issue (82nd edition) on ‘Intellectual Property in International and European Law’. With technological advancement and innovative practices occurring ever more frequently, individuals and undertakings often turn to intellectual property law to protect their ideas and seek remedies where appropriate (e.g. the recentApple v Samsung design dispute). Recent developments in intellectual property are now a regular feature in popular media and a much-discussed topic amongst the general public. As such, the Utrecht Journal will be dedicating its 2016 Special Issue to ‘Intellectual Property in International and European Law. The Board of Editors invites submissions addressing legal issues relating to intellectual property law from an international or European law perspective. Prospective articles should be submitted online via the Journal’s website and should conform to the Journal style guide. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult our website or email the Editor-in-Chief at utrechtjournal [at] urios [dot] org.

Events

• PluriCourts – Center of excellence at the University of Oslo, organizes a symposium on The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes (Oslo, November 5-6, 2015). Much of the discourse and analysis on this topic has focused on issues of fragmentation, conflict, and the balancing of obligations between legal regimes. But can international investment law and (inter)national environmental law be supportive and mutually complementary? The symposium will focus on investment treaty arbitration from a forward-looking perspective: how can future practice might be shaped or reformed in a way that can both promote environmental sustainability and protect responsible and legitimate foreign investments. Registration for the symposium is now open.

• The Centre of Excellence for International Courts (iCourts) is holding an interdisciplinary workshop on “Trust, Social Capital and Networks: A Different Perspective on International Courts”. The workshop, which will take place in February 4 and 5^th 2016 at the Faculty of Law of the University of Copenhagen (Denmark), aims to provide participants with the opportunity to think through and develop a new research agenda on social capital, networks and trust to be applied to understand International Courts and legal regimes. The workshop will be open to new participants PhD researchers, junior and senior scholars from international institutions working on this topic with an empirical approach. Further details about the call might be found here. The proposals should be submitted by the 15th of October to Juan A. Mayoral – juan [dot] mayoral [at] jur [dot] ku [dot] dk

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

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

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

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

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

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

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

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

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

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

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

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

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

The text of 22 September states:

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

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

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

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

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

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

We urge European states and the EU to:

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

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

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

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

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

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

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

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

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

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

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

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

Not surprisingly, WGN Chicago has since apologized.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Interested in more?  You could always buy the book.