Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.

The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:

The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court also suggested that Congress could not define international “conduct beyond the scope of the [international legal] definition” of offenses, as I argued in this forthcoming paper.

The standard for determining law of nations violations. Because Congress did not define attempts as part of the piracy prohibition, the Court looked to international law. The Law of the Sea Treaty – just as the Senate began to debate it again this week – was an important starting point, because it provides an easy-to-refer-to definition of piracy. By its terms, the Law of the Sea definition seems to include attempts. But the Fourth Circuit did not stop there, but continued to examine how courts in prior cases in other countries had ruled, including a famous Privy Council decision from the 1930s, and rulings of the Kenyan courts that have taken a leading role in prosecuting Somali pirates today, and an U.S. case.

Thus there has been actual state judicial practice establishing “attempts” as part of piracy; the Court didn’t just read this off a treaty that had never been applied in any case. Indeed, the decision could have gone the other way if the court was asked to be the first to “apply” such a theoretical norm: the opinion noted the “necessity of looking to… case law from other countries” to find that a putative norm exists. Slip op. at 19.

This has immediate relevance for the ATS, and Kiobel. (Indeed, the court borrowed freely from ATS decisions.) The existence of relevant judicial precedents is of course what is missing in several kinds of ATS claims, and especially for corporate liability.

Perhaps later I’ll say some more about how I think the decision may have been a bit too broad, or cavalier about Congress’s failure to “define.”

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS suits with rather opposite political valences, none of which involve corporate liability or foreign-cubed situations:

• Japanese whalers are suing Sea Shepherd Conservation Society in federal court for acts of piracy, violations of the SUA Treaty other navigational safety charters. The case raises interesting issues about the availability of injunctions under the ATS, as well as the meaning of “private ends” in the definition of piracy. (H/T: Other Eugene.)

• In recent weeks the Center for Constitutional Rights, which pioneered ATS litigation in Filartiga and many subsequent cases, filed suit against a U.S. preacher for encouraging the Ugandan government to criminalize homosexuality.

An interesting question this case raises is whether the Noerr-Pennington doctrine applies to the ATS generally, and whether it applies extraterritorially. One would think that those who argue corporate liability in ATS cases should be governed by federal common law would find Noerr-Pennington, based as it is on First Amendment considerations, fully applicable in this context. Noerr-Pennington has been extended to a variety of torts and to RICO actions, why not ATS?

One answer could be that antitrust violations are simply not violations when done by governments: indeed, much of what progressive economic policies entail is cartelizing workers and industries. Human rights violations, however, specifically are human rights violations when done by governments. But this just brings us back to the crossroads: do U.S. common law or international norms govern secondary legal issues in ATS cases?

Passover approaches, and with it the end of my rotation here. It has been a pleasure, and thanks to Eugene for having me here.

Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)

Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?

It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.

In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.

In Schecter Poultry, Justice Cardozo famously wrote:

Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.

The point here is the “periphery” is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.

UPDATE: This just gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:

[T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a “sufficiently close connection” to the U.S. is entirely absent.

I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows “can dish it out, but …can’t take it no more,” to quote Edward G. Robinson’s Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NORTHWESTERN UNIVERSITY LAW REVIEW 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 NORTHWESTERN UNIVERSITY LAW REVIEW __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are gain reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

[Cross-posted on OpinioJuris]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign-cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

This series of posts, also cross-posted on OpinioJuris, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there a some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever UJ power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The next few posts draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles in these posts.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law.  I – along with the foreign governments filing amicus briefs – would beg to differ.  There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.

A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law.  It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally.  The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric.  They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.

That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world.  It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation.  I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law.  And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”

A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline.  (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.)  Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.

How one gets that concern in front of the Supreme Court, I have not the faintest idea.  But I do think it is the overarching intellectual and political question at stake.

One can’t hold Stanford responsible for the activities of its student groups, but  the International  Human Rights & Conflict Resolution Clinic is an academic unit of the law school, run by faculty members.

How embarrassing for Stanford, and yet further evidence that in some circles any degree of idiocy can be forgiven so long as one is “Progressive on Palestine.”

H/T Rabbi Simon via email.

The Trustees of Boston College move to quash or modify subpoenae requesting confidential interviews and records from the oral history project known as the “Belfast Project.” The subpoenae were issued by a commissioner pursuant to 18 U.S.C. § 3512, the United Kingdom Mutual Legal Assistance Treaty (“UK–MLAT”), and a sealed Order of this Court. The government asserts that the terms of the UK–MLAT requires the Court to grant its order and deny any motion to quash absent a constitutional violation or a federally recognized testimonial privilege. Boston College asks the Court to review the subpoenae under the standard set forth in Federal Rule of Criminal Procedure 17(c)(2), where “the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.” This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK–MLAT….

In 2001, Boston College sponsored the Belfast Project, an oral history project with the goal of documenting in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 forward. The research also sought to provide insight into the minds of people who become personally engaged in violent conflict. As such, its progenitors saw it as a vital project to understanding the conflict in Northern Ireland and other conflicts around the world. The Belfast Project was housed at the Burns Library of Rare Books and Special Collections at Boston College. Boston College sponsored the project due to its ongoing academic interest in Irish Studies and its prior role in the peace process in Northern Ireland….

Boston College argues that the First Circuit recognizes protections for confidential academic research material and that these protections apply to the targets of the commissioner’s subpoenae….

[The] legal commitments that the United States made in approving the Treaty coincide with the general legal rule preventing journalistic or academic confidentiality from impeding criminal investigations. See Branzburg v. Hayes, 408 U.S. at 692 (rejecting “the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it”); United States v. Smith, 135 F.3d 963, 971 (5th Cir.1998) (“Branzburg will protect the press if the government attempts to harass it. Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen.”). “ ‘[T]he public … has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.” Here, there is no recognized privilege.

As the subpoenae state, the information is sought in reference to alleged violations of the laws of the United Kingdom, namely murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment, kidnapping, and causing grievous bodily harm with intent to do grievous bodily harm…. These are serious allegations and they weigh strongly in favor of disclosing the confidential information….

In this case, this Court must weigh significant interests on each side. The United States government’s obligations under the UK–MLAT as well as the public’s interest in legitimate criminal proceedings are unquestioned. The Court also credits Boston College and the Burns Library’s attempts to ensure the long term confidentiality of the Belfast Project, as well as the potential chilling effects of a summary denial of the motion to quash on academic research. With such significant interests at stake, the Court will undertake an in camera review of the interviews and materials responsive to the commissioner’s subpoenae.

This Court DENIES the motions of the Trustees of Boston College to quash the commissioner’s subpoenae, and GRANTS Boston College’s request for in camera review of materials responsive to the subpoenae to the Court. This Court ORDERS Boston College to produce copies of all materials responsive to the commissioner’s subpoenae to this Court for in camera review by noon on December 21, 2011, thus allowing time for Boston College to request a stay from the Court of Appeals. Absent a stay, this Court promptly will review the materials in camera and enter such further orders as justice may require.

This strikes me as correct as a matter of First Amendment law, and indeed an application of the standard principles that would generally apply to domestic criminal investigations; I don’t see the court restricting First Amendment rights in the name of international agreements here. Still, it struck me as an interesting and noteworthy example of how First Amendment questions sometimes arise in treaty cases.

Lawyers don’t win wars. But can they lose one?

We’re likely to find out, and soon. Lawyers across the U.S. government have raised so many show-stopping legal questions about cyberwar that they’ve left the military unable to fight or even plan for a war in cyberspace.

…

And here’s the part that inspired the title of this post:

By the 1930s, everyone saw that aerial bombing would have the capacity to reduce cities to rubble in the next war. Just a few years earlier, the hellish slaughter in the trenches of World War I had destroyed the Victorian world; now air power promised to bring the same carnage to soldiers’ homes, wives, and children.

In Britain, some leaders expressed hardheaded realism about this grim possibility. Former Prime Minister Stanley Baldwin, summing up his country’s strategic position in 1932, showed a candor no recent American leader has dared to match. “There is no power on Earth that can protect [British citizens] from being bombed,” he said. “The bomber will always get through…. The only defense is in offense, which means that you have got to kill more women and children more quickly than the enemy if you want to save yourselves.”

The Americans, however, still hoped to head off the nightmare. Their tool of choice was international law. (Some things never change.) When war broke out in Europe on Sept. 1, 1939, President Franklin D. Roosevelt sent a cable to all the combatants seeking express limits on the use of air power. Citing the potential horrors of aerial bombardment, he called on all combatants to publicly affirm that their armed forces “shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities.”

Roosevelt had a pretty good legal case. The 1899 Hague conventions on the laws of war, adopted just two years after the Wright brothers’ first flight, declared that in bombardments, “all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.” The League of Nations had also declared that in air war, “the intentional bombing of civilian populations is illegal.”

But FDR didn’t rely just on law. He asked for a public pledge that would bind all sides in the new war — and, remarkably, he got it. The horror at aerial bombardment of civilians ran so deep in that era that Britain, France, Germany, and Poland all agreed to FDR’s bargain, before nightfall on Sept. 1, 1939.

Nearly a year later, with the Battle of Britain raging in the air, the Luftwaffe was still threatening to discipline any pilot who bombed civilian targets. The deal had held. FDR’s accomplishment began to look like a great victory for the international law of war — exactly what the lawyers and diplomats now dealing with cyberwar hope to achieve.

But that’s not how this story ends.

…

The Dutch government’s electronic certification authority, DigiNotar, was compromised by a hacker in July of this year.  DigiNotar handled the hack badly, trying to fix the problem without disclosing it. As a result, DigiNotar’s credentials are being revoked by all of the major browsers.  This means that most web users will not be able to verify the bona fides of any site that DigiNotar has vouched for.  That includes a lot of Dutch government sites, and there are some reports that the Dutch government is leaning on Microsoft to keep the credentials operative for another week.  It also means that DigiNotar will be either out of business or buried in lawsuits that could also reach its parent, VASCO Data Security International.

The hacker who pulled off the compromise has posted messages claiming that the hack was revenge for Dutch peacekeepers’ surrender of thousands of Muslim men to Serb militias during the Balkan wars; the men were executed. The hacker says nothing about Iranian government sponsorship.

So why do I think the Iranian government was involved?

To understand that requires a bit of background about the role of certificate authorities on the Internet.  One of Netscape’s cleverest technological innovations was its solution to the problem of Internet eavesdropping.  It used public key encryption to encrypt the channel between a website and each user.  The user could look up a site’s public key and use that key to encrypt all of the user’s communications with the site.  (I’m oversimplifying here, but that’s the idea.)

The only problem was that the system was open to a “man in the middle” attack, where Mallory turns what’s meant to be a secure link between Alice and Bob into two secure links with himself as a secret hub and Alice and Bob as unsuspecting spokes.

Put another way, if an Iranian user asks Google for its public key, and he uses it to encrypt his communications, how does he know that he’s really using Google’s key?  If the Iranian government wants to read his Gmail, it could intercept his request and send him its own key.  He’d set up a secure channel with the government, which would then simply pass his login credentials on to Google.  For the rest of the session the government would sit in the middle, reading and passing on all the packets from both sides of the transaction.  Not good.

To prevent that, Netscape decided to bake a set of public keys into its browser.  The companies with the baked-in keys were certification authorities.  They could issue certificates vouching for the credentials of every site that wanted to offer secure, encrypted communications.

It was a great system, lightweight and very secure.  But only if the certification authorities kept their credential-signing process completely secure.  If they didn’t, then users would not know who was at the other end of the line, the website they wanted or a man in the middle.

Occasionally, of course, some fraudster would use fake documents to persuade a certification authority to sign credentials for a site the fraudster didn’t own.  That sort of thing could be fixed pretty easily.  Browser providers had already recognized that there had to be a way to revoke website certificates obtained by fraud, so browsers now do an online check each time they use a certificate; in essence, they ask an online server whether the certificate they are about to use has been revoked. So a single fraudulently obtained credential can be rendered harmless as soon as the fraud is discovered.

What happened to DigiNotar was not so easily fixed.  It appears that the hacker gained control of the credential-signing process for some weeks during July of this year, and he signed credentials for hundreds of online sites, including Google, Microsoft, and the CIA.

Now, that’s deeply embarrassing, and it probably would have been enough on its own to spell the end of DigiNotar.  But what came next was even worse.

Starting in August, according to investigators, online revocation checks for DigiNotar certificates jumped. Suddenly lots of people wanted to know whether the DigiNotar certificate for Google had been revoked.  This meant that hundreds of thousands of users were sure that DigiNotar was the authority that had signed Google’s credentials.  (In fact, Google signs its own credentials.) And 99% of the users asking about DigiNotar’s certificate for Google came from Iran. (Even the 1% of requests that didn’t come from Iran seem to have come from proxies and TOR routers in other countries, meaning they too could have been Iranian users.)

Clearly a lot of Iranian users had been fooled into thinking that DigiNotar had issued Google’s credentials.  I can only think of one way that could happen – if the Iranian government and ISPs were systematically intercepting packets bound for Google and saying, in effect, “I’m Google. Here are my credentials, signed by DigiNotar.  Let’s go secure and foil any eavesdroppers.” The user’s browser would say, “Wait a minute while I check to make sure DigiNotar hasn’t revoked your DigiNotar credentials, Google… Ok, you check out, let’s talk.”  As soon as the user started sending his login name and password to the fake Google, the middleman would use those credentials to log in to Google, which would set up a secure communications channel with the middleman.  The entire session would be encrypted unbreakably at every point in the chain save the one that mattered:  the government listening post in the middle. The Iranian government would be sitting pretty — Mallory between Alice and Bob.

Some observations, mostly additional reasons for thinking that this was an Iranian government operation, and what that means:

• The notes posted by the DigiNotar hacker make him sound like a flake and a braggart, hardly the kind of postings you’d expect from the Iranian secret police. Maybe this is misdirection, or maybe he pulled off the exploit and then handed over his loot to the Iranian government, voluntarily or involuntarily. But the implementation of the man-in-the-middle attack was so quick and so smooth that it looks to me as though the hacker was working with the government from the start.
• The same hacker who compromised Diginotar claims to have carried out attacks on Comodo and Globalsign, two other certification authorities. Both companies agree that they were hacked, although Globalsign is not admitting that its credentials were compromised. Again, compromising certification authorities is a great idea if you’re in the business of man-in-the-middle attacks; otherwise it’s got mostly nihilistic look-at-me-trashing-your-infrastructure appeal, which might make you wonder why this hacker has specialized in such attacks if he doesn’t work for the government.
• If this were an Iranian government op, the websites for which fake credentials were issued should be an Iranian government wish list — all the places where it most wants to be in the middle between the site and Iranian users. If so, the point of the fake CIA certificate wasn’t help hackers break into the CIA’s network. The point was to impersonate the CIA on line – to lure dissidents into setting up an apparently secure communications channels with a foreign intelligence service.  Iranian government paranoia about the CIA’s influence is so profound it’s almost flattering, and the Iranian government probably is kidding itself that the election protests were the result of foreign meddling, not the government’s unpopularity.
• In fact, the domains whose credentials were falsified do seem to be a kind of museum of Iranian government paranoia. Along with Google, Microsoft, and the CIA, the hacker made fake credentials for Mossad, MI6, Facebook, Skype, WordPress, Twitter, azadegi.com (an Iranian dissident site in Persian), Walla.co.il (a site in Hebrew), torproject.org, and Yahoo, along with others.  The full list is here.  In some ways, it’s an honor roll.
• It’s also a tell — more evidence that the attack on DigiNotar was government sponsored.  After all, if the DigiNotar hacker was really acting on his own, without government guidance, how did he manage to create so many certificates that would have so much value for an Iranian government man-in-the-middle attack?
• If this is cyberwar, it’s an Iranian government war against its own people.  And a very dangerous one. The flood of revocation checks coming from Iran continued all through August, meaning that anyone in that country who logged on to Gmail or Hotmail or the other honor-roll sites has probably lost control of everything – not just emails they sent in August but their passwords, their stored emails, their stored files, anything that could be accessed by passwords they used in August.
• As a result, DigiNotar’s security breakdown could foretell a new human rights disaster, with hundreds of thousands of victims. And, since we know the IP addresses that checked DigiNotar’s certificates, we could probably identify each victim individually.
• Which raises this question: We know from the online revocation checks that three hundred thousand Iranian users were fooled into using fake  DigiNotar certificates for Google. The same information should be available for Microsoft, Facebook, and every other fake certificate that was issued by the hacker.  Those numbers are the big story, and I don’t understand why reporters have dropped the ball on it, unless they don’t appreciate its significance.
• Mozilla has done a particularly good job of dealing with this issue, communicating more details earlier than most browser companies. Most recently, it called on the certification authorities it bakes into its browser to audit their security — and to put automatic blocks on some of the names, such as Google or Facebook, that are most likely to inspire man-in-the-middle attacks and least likely to change certificate authorities on short notice.  In contrast, Apple handled the whole affair pretty badly, taking days longer than the other big browsers to announce that it was revoking DigiNotar’s credentials.
• Iranian dissidents probably could protect themselves from these attacks by installing a browser extension called CertPatrol, which warns you if a site you’ve visited before has suddenly changed its certificate authority.  CertPatrol likely would have told all those Gmail users that, instead of going to a “Google” site that Google vouched for, they were instead going to a “Google” site that DigiNotar vouched for. They could also protect their Google account by turning on Google’s two-step verification process, which won’t let you log on from strange IP addresses until you’ve typed in a separate code sent directly to your phone.

As always when I venture too far into technical territory, I am quite aware that there are fine points I may be missing.  I welcome corrections and comments.

U.N.’s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful).

Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn’t contradict Heller’s argument that if it’s not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, “questioned the legality of the blockade” and said that it was not just wrong but that Israel’s claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone’s mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller’s analysis is indeed “contradicted.”

UPDATE: Heller, responding to this post, writes: “I’m glad Bernstein believes that any legal conclusion reached by the UN regarding Israel’s actions is by definition plausible.” No, what I actually said is that a legal conclusion reached by the UN that is favorable to a position argued by Israel is a position “that position cannot be deemed beyond the realm of even plausible argument,” because the U.N. is an unsympathetic (or in the best-case scenario, non-sympathetic) forum.

Heller also writes that “Bernstein admits that my central claim about blockade was completely accurate.” No, I acknowledged that one particular claim wasn’t contradicted by the Report, which is obviously a far cry from stating that it “was completely accurate.”

But I can play this game, too. So I thank Kevin Jon Heller for publicly declaring that I’m the best-looking, smartest, and most reasonable law professor in North America, and that I’ve persuaded him that Human Rights Watch is not an objective arbiter of human rights in the Middle East, but an organization with an anti-Israel ideological agenda motivated by the far-leftist inclinations of its Middle East staff.

(a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.

(b) A surgical operation is not a violation of this section if the operation is —

(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or

(2) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.

(c) In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.

[Findings:] The Congress finds that –

(1) the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States;

(2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved;

(3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;

(4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control;

(5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law; and

(6) Congress has the affirmative power under section 8 of article I, the necessary and proper clause, section 5 of the fourteenth Amendment, as well as under the treaty clause, to the Constitution to enact such legislation.

Do you think this is within Congress’s enumerated powers? If so, which ones? And what do you think about the reference to the Treaty Clause?

When asked why they leveled so much criticism at Israel for the blockade, but almost none at Egypt, which was also blockading Gaza, the only coherent answer that was forthcoming was that Israel was somehow making Egypt enforce the blockade. The sensible response was that Israel can’t “make” Egypt do anything, and that Egypt enforced the blockade because Egypt thought it was in its own interest to do so.

Now that Egypt has ended the blockade, we can definitively say that the sensible response was correct. The current Egyptian government has apparently decided that its strategic interest in containing Hamas is secondary to the public opinion brownie points it will receive for easing the Palestinians’ plight–not to mention that the policy wasn’t very effective at containing Hamas.

It would be nice to think that our friendly neighborhood human rights activists will now admit they were wrong, that Egyptian policy re Gaza wasn’t somewhat being secretly controlled by Israel, and that more public pressure on Egypt, instead of myopically focusing on Israel, might have ended the blockade sooner. But I’m guessing that we will see exactly zero such admissions, because it would amount to admitting the unhealthy and unjustified obsession with Israel that is prevalent in “human rights” NGO circles.

UPDATE: Just for example, here are two pieces from Oxfam referring to an Israeli blockade of Gaza, with no mention of Egypt. Here’s a lengthy piece from Human Rights Watch calling on the U.S. to pressure Israel to end the blockade, which has only the following about Egypt: “Human Rights Watch also called on Clinton to press Egypt to open the Rafah border crossing with Gaza to allow humanitarian supplies to enter from there. According to recent news reports, hundreds of truckloads of aid are rotting on the Egyptian side of the border.” Note that HRW couldn’t even be troubled to advocate that Egypt open its border with Gaza, only that it allow in humanitarian aid–something Israel, the main object of HRW’s critique, was already doing.

FURTHER UPDATE: There’s a very good reason that Egypt has until now refused to open its border with Rafah. Egypt wants Gaza to be solely Israel’s responsibility, but Egypt occupied Gaza from 1948 to 1967, and there are many in Israel who would like to see Gaza become Egypt’s responsibility once again–which would of course make it less likely that the West Bank and Gaza will become a unitary Palestinian state in the future.

Any move to integrate Gaza’s economy with Egypt’s could be a slippery slope leading to Egypt taking more and more of a role there.

Someone concerned solely with humanitarian issues has no stake in this debate, and would be just as happy to see goods flowing through Egypt to Gaza as through Israel. But then you have to assume that all the talk of Gaza’s “humanitarian crisis” is really primarily about humanitarian concerns, and not about broader political objectives.

What was the case, who were the Justices, and who was the judge who wrote the opinion in the court below, which took the same view?

H/T: Instapundit.

This analysis from Der Speigel, with the author wringing his hands over whether the killing of Osama bin Laden was “legal,” is an excellent example of this mindset.

It’s also worth noting that the cultists are inclined to take the most restrictive, often extremely tendentious view of international law, in which international law becomes a substitute for otherwise passe leftist pacifism or anti-Americanism. Note that the author makes the highly questionable claim that “for years, the very principle of international law has been to pursue justice rather than war.” If nothing else, it shows a mindset in which “war”, at least war engaged in by the U.S., is inevitably not the pursuit of justice.

And I had to laugh when I read this: “What is just about killing a feared terrorist in his home in the middle of Pakistan?”

Only everything.

UPDATE: Note also this lame attempt by Mary Ellen O’Connell to claim that the Osama hit was a product of “law enforcement techniques”, thus proving the superiority of the law enforcement model of counter-terrorism over the military model. The commenters are justifiably merciless.

From an international law perspective, it’s worth noting that the operation against Bin Laden is an example of targeted killing. Although we don’t yet know very many details, it’s pretty obvious that the US targeted Bin Laden deliberately, something the President more or less admitted in his speech, where he said that we have been tracking Bin Laden for many months (presumably for the purpose of targeting him as an individual). In the past, such targeted killings have drawn criticism from human rights organizations and others who claim that they violate international law. Co-Conspirator Kenneth Anderson described the debate in this excellent article. It’s unlikely that there will be much criticism of the operation against Bin Laden. However, the broader debate over the law and morality of targeted killings is likely to continue. I gave my own thoughts back in 2006, at the time of targeted killing of Abu Musab Al-Zarqawi. I think the central point holds true today:

In my view, targeting terrorist leaders is not only defensible, but actually more ethical than going after rank and file terrorists or trying to combat terrorism through purely defensive security measures. The rank and file have far less culpability for terrorist attacks than do their leaders, and killing them is less likely to impair terrorist operations. Purely defensive measures, meanwhile, often impose substantial costs on innocent people and may imperil civil liberties. Despite the possibility of collateral damage inflicted on civilians whom the terrorist leaders use as human shields, targeted assassination of terrorist leaders is less likely to harm innocents than most other strategies for combatting terror and more likely to disrupt future terrorist operations.

That does not prove that it should be the only strategy we use, but it does mean that we should reject condemnations of it as somehow immoral.

UPDATE: This Reuters report confirms that the special forces were instructed to kill Bin Laden rather than capture him (HT: Instapundit).

Human Rights Watch contributed heavily to the content of the Goldstone Report, and has been among the most ardent promoters of the Report. Kenneth Roth, HRW’s director, suggests that HRW has nothing to apologize for because “HRW promoted the Goldstone report’s recommendation for investigations, pushing both Hamas and Israel to investigate its own war crimes. We never endorsed the report’s finding of an Israeli policy to target civilians.”

I originally referenced lying in the title of this post, but that proved to be a distraction, because, as I noted, Roth’s statement isn’t quite a lie, but perhaps a dishonest obfuscation. Roth chose his words carefully, and I suppose it’s technically true that HRW never explicitly endorsed a Goldstone Report finding that Israel had a policy of targeting civilians (although, see below, on Oct. 1, 2009, Roth himself pretty much did).

But let’s review some of the statements [I read some, but not all, of HRW's many reports on Cast Lead to find these] that HRW did make, and see whether a reasonable observer would conclude that HRW publicly and loudly agreed with the premise that Israel deliberately targeted civilians during Operation Cast Lead. I think the answer is obvious, and it’s yet another blow to HRW’s credibility, both because of its conflict with Goldstone’s current position, and because of Roth’s current misrepresentation of HRW’s views. (In none of the statements excerpted below did HRW provide any caveats to the effect that the incidents in question may have involved rogue soldiers or units, as opposed to being Israeli policy).

Let’s start with Mr. Roth himself, writing in the Jerusalem Post on Aug. 25, 2009:

Israel could have conducted the war by targeting only combatants [editor: if Israel could have but didn't target only combatants, doesn't that mean she targeted noncombatants, i.e., civilians?] and taking all feasible precautions to spare civilians, as required by international humanitarian law. That is mandated even though Hamas often violated these rules, because violations by one side do not justify violations by the other.

Instead, as Human Rights Watch has shown through detailed, on-the-ground investigations, Israeli forces fired white phosphorous munitions indiscriminately over civilian areas, shot and killed Palestinian civilians waving white flags, attacked children playing on rooftops with precision missiles fired from aerial drones and needlessly destroyed civilian property.

[Update: Roth again, Dec. 29, 2009 : "Israel's view that one prevails in asymmetric warfare by pummeling rather than protecting civilians is not only illegal but also counterproductive."

And one more time, Oct. 1, 2009: "Richard Goldstone's charge that Israel implemented a deliberate and systematic policy to inflict suffering on civilians in Gaza is not, as you said, the 'central organising premise' of his report. Rather it is the conclusion of the report arrived at after a serious examination of the evidence."

Then there is Sarah Leah Whitson, director of HRW's Middle East division, speaking in Saudi Arabia in May 2009: "Human Rights Watch provided the international community with evidence of Israel using white phosphorus and launching systematic destructive attacks on civilian targets."

Whitson again, in a public presentation on July 9, 2009: Israel’s use of white phosphorous and heavy artillery in Gaza were "violations of the law that require you to distinguish between civilians and combatants, and to target only combatants."]

You might object that the views of particular HRW officials don’t necessarily reflect official HRW positions, so let’s move on to various HRW reports, keeping in mind that Roth and Whiston’s views might color one’s understanding of any ambiguities.

HRW, April 23, 2009: “Human Rights Watch’s investigation into the fighting in Gaza concluded that Israeli forces were responsible for serious violations of the laws of war, including the use of heavy artillery and white phosphorus munitions in densely populated areas, the apparent targeting of people trying to convey their civilian status…”

HRW, Aug. 13 2009 [After discussing alleged "white flag" killings by Israeli soldiers]: “The Israel Defense Forces have for years permitted a pervasive culture of impunity regarding unlawful Palestinian deaths”

HRW, Sept. 16, 2009: “The 575-page report, released on September 15, 2009, documented serious violations of international humanitarian law by Israel, with some incidents amounting to war crimes and possible crimes against humanity, including willful killings.”

HRW, November 3, 2009: “It also found that Israeli forces unlawfully used white phosphorous munitions and heavy artillery in densely populated areas, fired upon civilians holding white flags.”

HRW, April 11, 2010: “Between December 27, 2008 and January 18, 2009, Israel’s “Operation Cast Lead” in Gaza killed several hundred Palestinian civilians and wounded many more, some during Israeli attacks that were indiscriminate, disproportionate or at times seemingly deliberate, in violation of the laws of war.”

HRW, Feb. 7, 2010: “Human Rights Watch documented 53 civilian deaths in 19 incidents in which Israeli forces appeared to have violated the laws of war. Six of these incidents involved the unlawful use of white phosphorus munitions; six were attacks by drone-launched missiles that killed civilians; and seven involved soldiers shooting civilians who were in groups holding white flags.”

HRW, Feb. 26, 2010: “Nor has [Israel] conducted credible investigations into military policies that may have contravened the laws of war or facilitated war crimes. These include the targeting of Hamas political institutions and Gaza police; the use of heavy artillery and white phosphorus munitions in populated areas; and the rules of engagement for aerial drone operators and ground forces.”

UPDATE: Amazingly, Amnesty International is similarly obfuscating its prior positions in the wake of Goldstone’s op-ed. Less than two weeks ago, Amnesty proclaimed re Operation Cast Lead: “Both sides violated international humanitarian law. Israeli forces killed civilians using precision weaponry, launched indiscriminate attacks which failed to distinguish legitimate military targets from civilians, and attacked civilian property and infrastructure.”

Today, however, Amnesty issued a press release claiming that “Amnesty International has not argued that the Israel Defense Forces (IDF) targeted Palestinian civilians ‘as a matter of policy’, but rather that IDF rules of engagement and actions during the conflict failed to take sufficient precautions to minimize civilian casualties.” Forgive me if I find the accusations of launching indiscriminate attacks against civilian targets and killing civilians with precision weapons to be rather more serious than “failing to take sufficient precautions to minimize civilian casualties.” Indeed, it’s hard to read the earlier accusations as anything but a claim of deliberate policy.

This leads to the interesting question of why HRW and Amnesty aren’t sticking to their guns. Two answers suggest themselves: (a) having vested so much credibility in Goldstone personally, they need to claim that their views are consistent with his; and (b) they don’t want to be seen as criticizing Goldstone, for fear he will take offense and will issue additional statements that will harm their agenda.

FURTHER UPDATE: Just wanted to reiterate that the question I presented is not whether a generous interpretation of any of HRW’s statements listed above could lead to the conclusion that any individual statement didn’t necessarily accuse Israel of a deliberate policy of targeting civilians. Rather, the question is whether a reasonable observer, having read all of these statements and more, “would conclude that HRW publicly and loudly agreed with the premise that Israel deliberately targeted civilians during Operation Cast Lead.” Indeed, if all we are talking about is whether some rogue units or soldiers acted contrary to Israeli policy, and whether Israel could have achieved its military objectives with less damage to civilian infrastructure, it’s hard to see why HRW has devoted report after report to Operation Cast Lead, treating it as if it was the great human rights crime of the 21st century.

This is a notable (and sadly rare) victory for freedom of speech and religion at the UN. In previous posts, Senior Conspirator Eugene Volokh and I have pointed out the threat that this resolution poses to individual freedom (see here, here, and here). The resolution is also a prime example of how repressive authoritarian regimes use international human rights law to try impose their despotic norms on the international community. For reasons John McGinnis and I explained in this article, the problem goes far beyond this particular resolution.

Unfortunately, this defeat may not be the end of the “defamation of religion” resolution. The OIC and its allies could try again in future years. The UN General Assembly adopted a similar resolution in November.

There is no easy solution to the challenge posed by this sort of international “human rights” initiative that seeks to undermine freedom rather than protect it. But the beginning of wisdom is to recognize the nature of the problem. We should also act to prevent the use of international human rights law influenced by dictatorships to override the domestic law of liberal democracies.

In a stunning and unexpected turn of events, Judge Richard Goldstone has essentially reversed himself on the findings of the Goldstone Report. He does, of course, qualify his remarks to make it appear that he has not reversed himself. What he does, in effect, is to say that if only Israel had cooperated with his investigation from the start, he would not have reached the incorrect conclusions of the now famous and highly influential report. Israel, of course, had quite good reasons to distrust Goldstone, as his report did major damage. But one would rather have Judge Goldstone now blame Israel for his original damaging conclusions than to have him blame Israel for intentionally being the major human rights violator in the Middle East.

Now, Goldstone asserts, “We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding commission.” Poppycock! ….

He now argues, perhaps out of guilt or perhaps he decided his critics were correct, that “the purpose of the Goldstone Report was never to prove a foregone conclusion against Israel,” and that the original mandate of the UN Human Rights Council “was skewed against Israel.”

No foregone conclusion? Of the three other panelists besides Goldstone, one had already accused Israel of war crimes before the investigation and (verdict first, trial later), and another is so wildly anti-Israel that he holds an acknowledged grudge against Israel for purportedly murdering Irish U.N. peacekeepers (an event that never happened), and who also disclaimed his willingness to give any credence to photographic evidence of Hamas crimes presented by Israel. Goldstone himself was serving at the time as a board member of Human Rights Watch, which has hardly shown itself to be a neutral observer of the Israeli-Palestinian conflict. And indeed, NGO Monitor has shown that big chunks of the Report’s accusations were lifted from unsubstantiated HRW material.

Goldstone apparently is starting to regret his role in the whole fiasco, and it’s certainly amusing to read various anti-Israel blogs that formerly lauded Goldstone as a hero for speaking truth to power now worrying about the “damage” he is doing to their cause. The key lines in his op-ed: while “the crimes allegedly committed by Hamas were intentional,” “civilians were not intentionally targeted [by Israel] as a matter of policy.”

But Goldstone agreed to lead a kangaroo court appointed by the U.N. Human Rights Council, which includes such human rights stalwarts as China, Cuba, Egypt, and Saudi Arabia. Penance is always welcome, but Goldstone will go down in history as the head kangaroo.

UPDATE: David Schraub comments:

My line on Goldstone had always been that the problems in his report were structural, not the result of a malignant heart. It was Goldstone’s determination to play a straight hand in a marked deck that was his undoing. Judge Goldstone was trying his level best, but there was no way to have a full and fair investigation — no matter how diligent one is at crossing t’s and dotting i’s — when the propagating party is the UNHRC and the investigation occurs within a context (the international legal community) that is shot through with bias and prejudice. There seems to be some belated realization by Judge Goldstone that this is true, but I fear it is for naught. Like his original report, his mea culpa is too legalistic to have much of an impact — it is, shall we say, unlikely that the UN will accede to PM Netanyahu’s demand that the original report be retracted in the wake of Judge Goldstone’s recantation. We are, and always were, in the realm of politics, not law. Judge Goldstone tried as hard as he could to imagine that was not so, but there is no way to extract oneself in cases such as this. His colleagues in the system understood the game, and he got rolled.

I think, additionally, that Goldstone took Israel’s refusal to participate in this “game” as a personal affront, rather than causing him, as he should have, to question the whole enterprise.

Max Boot points to the same effect of international criminal prosecution (a topic that international human rights law scholars have discussed in the past):

Hillary Clinton claims that Moammar Qaddafi may be exploring exit options. Count me as skeptical. The problem is that we don’t have a whole lot to offer a dictator in exile….

Qaddafi … has committed war crimes such as the bombing of Pan Am flight 103. He knows that if he leaves power he could wind up in the dock at the International Criminal Court.

The ability of the international coalition or the Libyan opposition to make a deal for his abdication has been complicated by the Charles Taylor precedent. Taylor was the former president of Liberia who left office in 2003 as part of an agreement that allowed him to escape into exile in Nigeria. But Interpol promptly issued an arrest warrant for him and in 2006 Nigeria handed him over to the UN’s Special Court for Sierre Leone. Eventually he wound up in the custody of the International Criminal Court in the Hague where his trial continues to drag on….

[I]n return for getting Taylor into court, we are making it more difficult to depose other dictators. Qaddafi has every incentive to fight to the death and take a lot of people down with him….

As Boot points out, the threat of such an anticooperative effect is by no means always a reason against criminal punishment. (We don’t decline to punish rapists or robbers, for instance, just because the risk of punishment may increase the incentive for the criminal to kill the victim and thus eliminate a witness.) But it is a reason to seek some solution to the problem, especially when one possible consequence of the anticooperative effect — here, of a refusal to cooperate with a possibly win-win deal offered by the government — might be the death of many thousands in a protracted war. Meting out justice to murderers is an important goal, but not the most important goal.

Boot, for instance, suggests a procedure for granting immunity, something akin to the American Presidential pardon. (In fact, one value of pardons and amnesties has historically been the possibility of ending a civil war by offering most rebels a reason not to fight to the death.) I’m not an expert on the subject, but I’m inclined to think that’s probably a good idea.

UPDATE: Wall Street Journal reports that Egyptian army is shipping arms to the Libyan “rebels.” Which is to say, to the legitimate government of Libya. As the Declaration of Independence affirms, the only legitimate governments are those founded on the consent of the governed. Accordingly, the Gaddafi gang was never a legitimate government, merely a large gang of criminals who controlled a big territory. The French government’s diplomatic recognition of the legitimate Libyan government reflects this fact. @liamstack reports that France says it will be ready within hours to fly over Libya. @lilianwagdy says that Libyans in France are chanting “Zanga Zanga, Dar Dar, We will get you Muamar!” Vive la France! Vive Sarkozy! Vive les droits de l’homme!

An earlier version of this story mistakenly reported that the Obama Administration is sending Additional Protocol 1 for Senate ratification. It is treating Article 75 of Protocol 1 as legally binding, though it has not been ratified by the Senate.

(Update 2:  John Bellinger, who knows this matter better than anyone (possibly excepting Matt Waxman), has a must-read post on the Obama administration’s international law framework in the “fact sheet” at Lawfare.  Among other things, he points out (and I stand corrected in my post below) that the administration has not claimed that Article 75 is actually customary international law:

It is also important to note that (contrary to the views of four present or past justices of the Supreme Court) the Administration has not concluded that Article 75 already constitutes “customary international law.” This would have required the Administration to determine that almost all the states in the world accept Article 75 as a legally binding obligation, which would have been difficult to do. Instead, the Administration has announced that it will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual detained in an international armed conflict, and expects all other nations to adhere to these principles as well.” In other words, the Administration is saying (appropriately, in my view) that it will lead by example by attempting to create customary international law through state practice.

In addition, he comments on the question of whether the administration will apply Article 75 to non-international armed conflicts and non-state actors such as Al Qaeda:

The Administration states that it will apply Article 75 only to individuals detained “in an international armed conflict.” The Supreme Court in Hamdan, by contrast, concluded that the U.S. conflict with al Qaida is a “non-international armed conflict.” Accordingly, it is not clear whether the Administration disagrees with the Supreme Court’s characterization of the conflict or whether it actually intends not to apply Article 75 to current al Qaida and Taliban detainees. If the Administration does not, in fact, plan to apply Article 75 to current Al Qaida and Taliban detainees (or to other non-state actors captured in non-international armed conflicts), then the White House’s announcement, while still laudable, is considerably less significant than it first appears.  My assumption is that the Administration does plan to apply Article 75 to al Qaida and the Taliban and that it does not agree with (or overlooked) the Supreme Court’s conclusion that the conflict is a non-international armed conflict.

(Update 3.  International law scholar Marko Milanovic, writing at the EJILTalk blog, offers a very useful discussion of John Bellinger’s post, above, running both to the status of Article 75, and more generally about the nature of opinio juris.  Let me just add in passing that I haven’t cross-posted this to the Opinio Juris blog as it is in the middle of a symposium that I don’t want to interrupt with outside posts.)

*

Unless I seriously have misread something in either today’s Wall Street Journal editorial on the Obama administration’s new executive order on detention, or else the Obama administration’s “fact sheet,” released yesterday with the text of the executive order, the Journal editorial is seriously factually mistaken as to the adminstration’s international law position.  The Journal editorial says, with respect to its “one exception” to the general praise it bestows on the policy:

The other note of trouble is Mr. Obama’s decision, also announced yesterday, to seek Senate ratification of a radical 1977 revision to the 1949 Geneva Conventions known as Additional Protocol 1. President Reagan repudiated Protocol 1 in 1987 because it vitiated the distinction between lawful and unlawful enemy combatants. Terrorists fight out of uniform and target civilians and thus do not deserve traditional prisoner-of-war protections. This was the two-decade political consensus until the Bush Presidency. Both the New York Times and the Washington Post editorialized in favor of Reagan’s Protocol 1 decision.

Our guess is that Mr. Obama has adopted Protocol 1 to appease the domestic left and especially the “international community” that will be dismayed by his new embrace of Gitmo and George W. Bush’s policies. Remember the moralizing Europeans? (See here.) Mr. Obama is nonetheless complicating the task of U.S. terror fighters, and encouraging further barbarism, by extending the laws of war to terrorists who hold combat restrictions in contempt.

The problem is, that is not what “fact sheet” says.  (The Executive Order on detention does not address these broader policy issues at all, and is confined to the internal workings of detention and hearings.)  The “fact sheet” gives a broader statement of US views and policies, including what it describes as a commitment to the international law framework that informs the law and policy.  In its section on international law, it commits itself to two things, neither of which is “seeking ratification of … Additional Protocol 1.”

The first is a commitment to seek ratification of Additional Protocol 2 (not 1).  This second additional protocol to the 1949 Geneva Conventions (like Protocol 1 opened for signature as treaties in 1977) addresses aspects of non-international armed conflict.  The United States government under President Reagan did not have a problem with this protocol overall – the Reagan administration in 1987 submitted it for Senate ratification.  The Obama administration has merely called for the Senate to go forward with a ratification process initiated by the Reagan administration.

This is by sharp contrast, as the Journal editorial has said, with the Reagan administration’s views of Protocol 1, which provides a redrafting – in some ways good, but in some enormously important things bad, as the Journal correctly says – of the law of international armed conflict.  But the fact sheet nowhere calls for ratification of Protocol 1, and indeed says that the “Administration continues to have significant concerns with Protocol I.”  A straight reading of the fact sheet says that the Administration would like to see a relatively uncontroversial and uncontested treaty on non-international armed conflict that was endorsed by the Reagan administration finally ratified, and that the Administration continues to have problems with Protocol 1 and is not pursuing ratification now any more than it or any administration subsequent to the Reagan administration has done.

Second, what the fact sheet does say about Protocol 1 is that the United States will embrace one article of it, Article 75.  The US government embraces Article 75 as something it has long done and accepted, and therefore the United States will

choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

The fact sheet does not say that the US will regard Article 75 as “customary law,” but that is the effect of the US saying that it will adhere “out of a sense of legal obligation.” Meaning that the US will follow this provision because it believes that it is binding law and on that basis expects other states to do the same.

What is Article 75?  It is a provision of Additional Protocol 1 applicable in “international” armed conflict that provides for certain basic minimums, so called “fundamental guarantees.” It repeats language in many other conventions concerning torture and what was at the time of drafting understood as a reference to rape and sexual assault – “outrages upon personal dignity” and “indecent assault,” and provides special protections for women held in detention.  (I’ve put the text in full below the fold.)

Article 75 has particular reference, however, to trials of a person detained under the laws of international armed conflict.  Its most basic provision is that there shall be no summary execution, and that prior to the imposition of a penalty, the accused be afforded a hearing and certain other minimum protections.  But it is pretty minimal.  It specifically contemplates that a Party to a conflict might impose the death penalty; it requires some additional process, but not really very much.  It provides for counsel – but does not assume that the counsel shall be a lawyer, but might be a fellow detainee.

Article 75 came to prominence as a source of law that might be applied in the Bush-era detainee cases as a set of minimum standards of hearings, and so on.  The difficulty on its face is that this is a provision in a treaty applicable to international armed conflict, and the conflict with Al Qaeda was rapidly being characterized as a non-international armed conflict.  There was a move to treat Article 75 as “customary” law that could be somehow treated as applicable across all forms of conflict.  The Supreme Court, in its Hamdan and related decisions, raised these possibilities without actually settling anything about Article 75.

I myself do not have a problem with treating Article 75 as a source of law that the US should use to guide all hearing processes of detention, in international or non-international armed conflict.  But that is a matter of choice by the United States, not in my view compelled by a provision of a treaty governing international armed conflict to which, additionally, the US is not even a ratifying party.  I am okay with the US applying this as a standard in non-international armed conflict on a voluntary basis, provided however that the standard of care taken be the same for all parties as the minimum.   The problem with how some discussion of Article 75 proceeds is that the assumption is one of “greater capacities, greater obligations.”

In this, the underlying assumption goes to a larger discussion today over the laws of war – viz., if you have greater capabilities or capacities, whether to use precision weapons, to hold more “formal” and “lawyerized” trials, etc., you have a legal obligation under the laws of war to do so, even if your enemies on the other side, lacking the capacity, do not do so and are not required to do so. This “each according to his capacities” re-write of the laws of war seems to me a terrible idea.  It gives each side, but particularly the weaker side, incentives never to develop such capacities, to start with – not just in technology, but in the ability to hold prisoners, conduct hearings, etc.  It similarly disincentivizes the more sophisticated side from developing such things as better precision weaponry, if the effect is to tell you that now you’re required to use it irrespective of what the other side does or your own concerns about resources and application of them.

I wondered about this trend back as precision weapons were becoming cheaper and more available, while working for Human Rights Watch in the early 1990s, and asked senior people at the International Committee of the Red Cross whether there would be an obligation upon one side, but not the other, to use such weapons: the capacities approach, creating unequal obligations upon the sides.  And I was told in no uncertain terms that this would never be the case – each side held to exactly the same standard was firmly asserted as the only sound basis for holding sides accountable. Well, time passes. I’m not entirely sure where the leading monitors are on this question, these days, but the hot discussion in cutting edge academic circles is, indeed, toward a capacities approach overall to the laws of war.  To which I am unequivocally opposed.

However, whatever risks one sees in a capacities approach combined with a view that Article 75 is customary law applicable in all forms of conflict, international and non-international, that is not actually what the Obama administration embraces in the fact sheet.  The fact sheet takes Article 75 on its own terms and in every instance refers to “international armed conflict.”  That’s it.  It embraces Article 75 on its face, as an obligation of states in international armed conflict.  That is not even addressing the kind of non-international armed conflict references that surface in the Supreme Court opinions or the concerns about non-international armed conflicts and terrorist detentions that the Journal mentions.  It is a position urged by Bush administration State Department Legal Advisor John Bellinger and numerous others, including me.

I am not exactly a cheerleader for the Obama administration, and my view of ratification of Protocol 1 is probably identical to the Journal’s.  But I think the Wall Street Journal editorial simply gets its facts wrong in this case.  My recommendation to the Journal is not to try and bluff and bluster out of it – claiming that what is said about Article 75 is enough to justify what it says about Protocol 1 in total, for example.  Better in this case to admit that it read, and wrote, too quickly, and made a mistake about what the Obama administration has said and done.

(And who knows, maybe I have read the editorial too quickly, or the fact sheet and order too superficially and have missed something major, in which case I am happy to be corrected and will says so.  But at this moment I don’t see it.)   Below the fold, the text of Article 75.Art 75. Fundamental guarantees

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;

(b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
(i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
(j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised.

5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:
(a) persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and
(b) any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.

I.  Intra-USG Politics

So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise.

But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties – including, interestingly, even if blessed by the Security Council – is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. (But maybe this is changing and the administration is swinging round to support a no-fly zone, as Jack’s citations to various administration spokespeople might suggest.)

Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East.  It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter – now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word).

I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this.  However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing.  This officer said to me, somewhat tongue in cheek, “Where’s the CIA?  Isn’t this what we’ve got a CIA for?  Isn’t this what you think the CIA is supposed to do?  Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?”

II.  The CIA, “Deniable” and “Covert”

Strategypage, as it happens, has an interesting report (H/T Insta) on special forces, commandos, and intelligence personnel on the ground in Libya now – saying in particular that Egyptian special forces teams are assisting the rebels now, and that some US personnel are on the ground, partly for intelligence but also to protect diplomats and other “nationals” assistance.  (It would be astonishing, of course, if many countries did not have intelligence agents on the ground in Libya, whether strictly to gather intelligence or to pursue particular country interests.) According to Strategypage:

The rebellion against the Kadaffi dictatorship in Libya has not produced any official outside help, but Egypt has apparently sent some of its commandos in to help out the largely amateur rebel force. Wearing civilian clothes, the hundred or so Egyptian commandos are officially not there, but are providing crucial skills and experience to help the rebels cope with the largely irregular, and mercenary, force still controlled by the Kadaffi clan. There are also some commandos from Britain (SAS) and American (Special Forces) operators are also believed wandering around, mainly to escort diplomats or perform reconnaissance (and find out who is in charge among the rebels).

Part of the question, if you want to intervene at all, is whether to do so with an overt military act such as a no-fly zone (including potentially having to attack air defense, aircraft, bases, etc. to establish it) – or instead to use “non-overt” intelligence agents or special forces.  It depends partly on what signal you want to send to other actors internationally. Here are three possibilities (drawn loosely from distinctions I make in my forthcoming (July 2011) book on US-UN relations, Living with the UN, and earlier laid out in an article on the role of the Security Council):

• Do it openly (but with SC approval and some form of recognition that SC was legally and politically necessary, rather than merely desirable). You send the signal that the US sees itself as the “muscle” in UN collective security, where the US is the most powerful actor, but still only an actor within the UN security system, dependent upon SC legitimacy to act.

• Do it openly (but without SC explicit approval) – because you presumably think it will garner good will with populations the US cares about. But it also sends a signal to others in the world that the US is explicitly back in the ‘global order game’ as a hegemonic player on its own, for its own interests and its own ideals.  It announces that the US is not merely a powerful player in a UN-centric “collective security” arrangement in which it is the UN’s muscle, but is operating as it always has, in its “parallel” security system of (very) loose, semi-hegemony.  It also sends a signal to other (bad) actors in the world that the SC or the UN cannot necessarily protect them.  But then, overreach of the kind that Gates and others in the administration fear is a live possibility.

(The Obama administration, after all, is built of both Gatesean “traditional” realists as well as New Liberal Realists; it is far from being how it is sometimes portrayed on the right, as only a bunch of egghead liberal internationalists for whom Security Council approval genuinely is its own reward. [Note: Because many of the administration's liberal internationalists are academics, limited by their academic institution's customary '2-year' rule for being on leave but not giving up tenure, they arguably have less permanent influence because they are not around for an entire administration.  This is a hypothesis, not a conclusion, but one I wish someone (not me) would research. The hypothesis would, of course, apply to academics in any administration, not just the Obama administration.])

• Do it ‘not-openly’, and of course it will be known that the US is taking part, deniably rather than covertly.  In that case, you send still other signals – some of them, depending upon how conveyed, might be understood that the US being unwilling to act openly without SC approval.  Alternatively, this might be read as signaling that the US is willing to be much more assertively “realpolitik” in the sense of being willing to rely on “deniability” while using force not just against non-state terrorist actors such as Al Qaeda, but against states.

“Signals” always carry ambiguity in sending and receiving.  But the above grafs referred to “openly” and “not-openly,” rather than “covert,” because it points to a gap in the legal categories of action by the CIA.  The CIA statute defines “covert,” and it might or might not cover various things that the US might do (or being doing, for all I know) in Libya.

But the bigger legal policy issue in US national security, as with Pakistan and other places, is that the CIA is engaged in actions that are properly described as (perhaps barely) politically “deniable,” but not “covert” in any true operational sense.  The statute on covert activities does not distinguish among these possibilities – but perhaps it is time to consider a new legal category, with a different set of reporting and other requirements attached to it in domestic law, a category specifically named for “deniable” operations distinct from “covert” ones.  That’s an important discussion with regards to long-term CIA activity, but it is relevant, of course to both Pakistan and Libya today, though I won’t say more here.

III.  Legal Rationales, For and Against Intervention

The (necessarily brief) responses at Opinio Juris to my question on legal arguments around humanitarian intervention, for and against, were illuminating and thoughtfully expressed.  I would break them down into the following broad categories:

A. Security Council permission required for humanitarian intervention.

This legal view argues that if intervention of any kind was to be undertaken, it had to be under the Chapter VII (of the UN Charter) authority of the Security Council. It could not be by any particular country, itself or in coalition.  Moreover, the Security Council itself would have to make certain findings under Chapter VII, viz., the existence of a threat to international peace and security.  This would, in effect, deny that the NATO action in Kosovo in 1999 was a legally sustainable precedent for action in Libya. Those taking that position point to the General Assembly resolution adopted at the conclusion of the 2005 UN reform summit – the so-called “Outcome Document” – which, on the one hand, recognized the existence of a “responsibility to protect,” but then cabined it with requirements for Security Council authorization, on the other.  As an observer of that 2005 process, it seemed to me quite plain that the General Assembly understood itself to be repudiating the Kosovo precedent.

B. Security Council permission not required for humanitarian intervention.

This legal view argues, contrary to the foregoing, that humanitarian intervention continues to be an available option for states acting even without Security Council authorization.  Insofar as this is supposed to be about “humanitarian” intervention, it then says, consistent with what NATO said at the time of Kosovo, it might not be within the literal language of the Charter under Article 2(4).  A defender of this view then has two basic options:

(i) “Extra-legal, but legitimate”

One is to acknowledge that one is “extra-legal,” and then go with a popular (among academics of NATO countries, but not with Russia, China, or the rest of the world, I think I would say) justification of saying, “not legal, but legitimate.”  This is a peculiar formulation, to say the least, for international law academics who otherwise take pride in being within the four corners of the Charter.  But it is a position argued by otherwise impeccable liberal internationalists such as Anne-Marie Slaughter, who has consistently followed it, so far as I understand, in her calls for action in Libya.

This legal approach harks back to the long tradition of international law as understood at the State Department.  Viz., what we are pleased to call “international law” is genuinely law – contra the radical skepticism from, for example, Eric Posner – but equally it is law intertwined in a “pragmatic” way (drawing on Michael Glennon’s excellent new book on this topic) with politics and diplomacy.  The politics and diplomacy support the “law” in good faith, but inform, alter, and shape it according to changing circumstances in the world.  If one is “pragmatic” in that way, then “not legal [technically], but legitimate [politically]” makes perfectly good sense, whether one agrees with it as an approach to international law or not.  It might not be one’s preferred approach to international law, but it is a plausible one – and anyway, the one followed by the United States and many other powerful state actors over the long run.

However, it bears noting that this position of “legitimacy,” despite formally not meeting the Charter language of 2(4), is not the same as at the time of Kosovo.  After all, the 2005 Final Outcome document was apparently intended to be a repudiation of the legitimacy of just such extra-legal action (and of course what is here blandly called “extra-legal” might be better characterized as “illegal”).  Someone like me would shrug and say, a General Assembly resolution is not binding, per the terms of the Charter – but it is perfectly correct to respond to that and say, we’re not talking here about legally binding, but about your own preferred term of political legitimacy.  The GA resolution is important beyond its formal legal status, precisely because it denies such Kosovo-type actions political legitimacy, at least from here going forward.

(ii) R2P ‘legal’ as an extension of self-defense or defense of others

The second path, if one assumes ‘no Security Council authorization’, is to argue not just that’s it’s legitimate, but that it is actually legal.  In rough terms, this means appeal to self-defense (including the defense of others who can’t defend themselves) from aggression as an on-going customary law right, including under the Charter.  The legal argument then runs to a point crucial in many justifications of humanitarian intervention under “Responsibility to Protect” (R2P). Self-defense, or defense of others, can run not just to defending a state, but to defending a state’s own people. Including – this is the crucial R2P move – defending a people from their own state.

The background argument in this version of R2P is that sovereignty resides in the people, and that when a state undertakes mass atrocities against its own people, the state – which is merely trustee of the people’s sovereignty – loses the legal attributes of that sovereignty.  Outsiders thus gain the right, and perhaps the responsibility, to intervene on behalf of the (sovereign) people as against their own state, in order to protect them.  If any of the foregoing is accepted as a legal proposition, then the intervention does not violate sovereignty.  I’m not suggesting that this is easily reconciled with the UN Charter, simply that it is an argument for why R2P is not necessarily inconsistent with the law of sovereignty.

In that case, as regards Libya, the lack of Security Council authorization  (the GA resolution notwithstanding as it is not legally binding, and we are here concerned with law, not legitimacy) is not dispositive of the legal situation.  Self-defense; extended to defense of others; extended to defense of the sovereign people even against their own (‘de-sovereigntized’, if I can call it that) government that, finally, is sufficient legally to cover the humanitarian intervention.  Good faith is required, and it cannot be a means to territorial conquest or acquisition, but it is (arguably) legal.

( I leave aside in this whole discussion  how one should, or might plausibly, interpret the actions or inactions of the Security Council, or the effect of its limited actions to date – including the referral to the ICC prosecutor and sanctions regimes – in relation to going further than them to actual armed intervention or not.)

C. Recognition of belligerency in a civil war

Perhaps the most interesting legal view on how one might undertake humanitarian intervention in Libya was that offered by international law professor Jordan Paust.  He suggested that there might be a recognition of belligerency in a civil war, and that the US and others could recognize the belligerency as a legal matter and then side with the rebels as the legitimate legal government of Libya.  This is coupled with a legal justification about self-determination.  (His argument is more complicated legally than that, and I refer experts who can unpack the shorthand to his comments and more generally to the articles he cites.)

I found this particularly interesting because, unlike the positions described above, this one is not premised in the first place on humanitarian intervention as its own justification for action.  It is premised explicitly on belligerency and its recognition in a civil war – and humanitarianism as a motive is then wrapped into something that is not legally necessarily about it in the first place.  How this squares with the role of the Security Council and the Charter is another matter, if one assumes that there is no Security Council authorization forthcoming. And, as commentators noted at OJ, the International Court of Justice’s Nicaragua decision.  I won’t try to answer those questions (nor do I want to suggest that I’ve fully or correctly reconstructed Professor Paust’s position; treat this as my reconstruction of a possible position derived from it).

This position has the rhetorical and legal disadvantage of not being explicitly about humanitarianism, intervention explicitly to protect the population.  It seems unlikely that very many governments, the Obama administration or the Bush administration or any US administration, would really want to proceed down a path that doesn’t take “above the fold” advantage of humanitarian reasons for their own sake for an intervention.

On the other hand, this approach has the corresponding virtue of clarifying that one is genuinely taking sides in a struggle over regime determination that is only partly about humanitarianism and partly a judgment about the nature of the Qadaffi regime as such.  Self-determination is not neutral humanitarianism, after all.  And arguing that one is intervening not because one fully supports the rebel cause as such (in order to replace the existing regime, because it is against US ideals and interests both) but instead only on the limited grounds of neutral humanitarianism for the sake of the population because it is under attack, might lead to very bad policies. Lead, that is, to the bad policies of NATO, the US and the UN in Bosnia, in which there was no intervention on one side or the other ostensibly, but only referees supposedly to protect the civilians. Proportional responses regarding humanitarian violations that turned out merely to ratify the violence, freeze it in a status quo, and all the many other objections that critics like David Rieff raised at the time.

This seems to me in the Libya situation today as wrong-headed as it was in Bosnia, but I am not expert in Libya, so that’s mostly a holdover reaction from my dislike of how Bosnia was handled.  We disfavor a side – Qaddafi.  Do we favor the other side, if there is one with which to deal?  If so, then (perhaps; I only want to sketch out the form of an argument which I am not sufficiently expert to answer regarding Libya-in-fact) we ought to recognize that side, argue for self-determination, and favor them with assistance, whether overt or covert or deniable.

(To be clear, in case it’s not. I have never thought the ICJ’s Nicaragua decision either persuasive or binding precedent for the US, which naturally colors what I say here. The more interesting legal question, of course, is how one might fit this within the Nicaragua decision, if one does not share my view.)

IV.  The limits of humanitarian neutrality

There is a broader point here, on which I’ll end.  The international community persists in an inchoate but, I think, widely shared view that the “highest” moral position is that of “neutral” humanitarianism.  Anyone else is “interested” and “partial” and thereby not “universal.”  I have strenuously argued that this cannot be morally right – the highest moral position cannot attach to the (mere) neutrals in the world.  At most they are a residual category – crucial for a certain moral purpose, the humanitarian protection of innocents – but this moral position cannot be the “highest” one to which all the rest must aspire.  As I put it in several articles – though not to wild applause within the international law community, to the modest extent anyone noticed – there is a problem morally if everyone wants to be the International Committee of the Red Cross and no one wants to be Churchill. Humanitarianism

may require neutrality as a condition of its very existence. But that hardly means that neutrality is the highest virtue, the most admirable moral position, in conditions of conflict. While neutrality may make humanitarianism possible, it will always be a derivative virtue in a world containing evil, a deliberate and knowing suspension of public moral judgment for the sake of another moral good, such as the relief of suffering. But if evil is not to triumph, we cannot all be neutral. Someone must fight for what is right: If there is to be a Red Cross, there must also be a Churchill.

That is part of the problem here.  The international community instinctively wants to reach to justifications for humanitarianism rather than nakedly taking sides, because we have talked ourselves into thinking that only neutral humanitarianism expresses our highest reasons for using force.  But we don’t actually mean that.  We – at least the United States and its friends, not the masses of countries of the General Assembly – do actually mean to take sides here.  If we are not prepared to take sides, we are at least prepared to declare against a side, as such, and not solely on the humanitarian grounds that the regime is attacking its people.

When the US government says that the Qaddafi regime has lost its legitimacy, that might not be an endorsement of the rebels as a government – but it is far more than simply asserting a humanitarian concern.  If a no-fly zone were to be imposed, that is not merely an action in support of humanitarian action; it is an attack upon a side in a conflict, and – objectively speaking, as we residual marxists say – in support of the other side.  It is often better to acknowledge one’s commitments to one side or at least against the other openly, and not hide behind an anodyne “humanitarian” concern.

Iain Levine of Human Rights Watch responds to the criticism here. (I find it interesting that HRW has decided to let Mr. Levine speak for the M.E. division; I think their p.r. people have realized that Ken Roth and M.E. director Sarah Leah Whitson are so hostile to Israel that they just add fuel to the fire whenever a controversy erupts). The thrust of his remarks is that HRW chose to disregard the Israeli Supreme Court opinions because they were based on secret evidence. (Since when is “secret” a synonym for “baseless?”)

Critic Stuart Robinowitz, who has longstanding ties to HRW, responds to Levine here. Robinowitz points out that Whitson and Roth, when recommending Jabarin to the HRW board of directors, asserted that he had discontinued his ties to the PFLP more than twenty-five years ago. Whitson and Roth failed to even mention the Israeli Supreme Court’s findings to the contrary.

Robinowitz concludes: “In 2006, Jordan barred [Jabarin] entry for security reasons. Do staff members of HRW have more reliable information about Jabarin than the supreme court and security services of Jordan and Israel?”

Understating matters considerably, Robinowitz told the Jerusalem Post that “the Jabarin incident, I believe, is part of a pattern of conduct that casts doubt about Mr. Roth’s and Ms. Whitson’s ability to deal with matters affecting Israel in a balanced and objective manner.”

[The comments section on the previous thread on this matter was far from enlightening, so I'm not going to bother with comments here.]

UPDATE: Anne Herzberg of NGO Monitor emails to point out a series of misstatements (i.e., lies) in Levine’s defense of Jabarin.

The most telling one relates to this claim by Levine: “In addition to his criticisms of Israeli violations, [Jabarin] has been one of the leading Palestinian voices condemning … suicide bombings and rocket attacks against Israeli civilians by Palestinian armed groups in the West Bank and Gaza.”

Hertzberg retorts: “I have been personally monitoring Al Haq [Jabarin's NGO] and Jabarin for nearly 5 years. I have never seen any evidence that either has condemned suicide bombings or rocket attacks.” I (Bernstein) checked Al Haq’s website, searching for, among other things, “rocket” and could find no criticism of Palestinian rocket attacks, suicide bombings, or other attacks on civilians.

And here, an official Al Haq statement explaining Jabarin’s position sure seems to try to differentiate between “Palestinian resistance” (i.e., Palestinian terrorism), and other forms of terrorism:

After the events of the World Trade Center on 11 September 2001 the United States succeeded in establishing linkages between legitimate resistance against occupation and terrorism. She has imposed its own definition of “terrorism” and considered the Palestinian resistance against the Israeli occupation as a form of terrorism. Such a position by the United States was in the interest of Israel and gave her an opportunity to relate the Palestinians legitimate resistance to terrorism also.

While there is no explicit defense of the suicide terrorism that was plaguing Israel at this time, it’s hard to read this statement as anything other than a claim that this suicide terrorism was in fact a form of legitimate “resistance.” Of course, this is hardly surprising for someone who is entwined with the PFLP terrorist group.

FURTHER UPDATE: I sent a polite email to Al Haq via its website asking for evidence that Jabarin has ever condemned Palestinian rocket attacks or suicide bombings. I’d be happy to publish such evidence if it were presented, but it hasn’t been.

Meanwhile, Kevin Jon Heller finds that Al Haq has, in fact, pointed out that Palestinian rocket attacks are illegal, albeit in one line out of thousands published in the last several years, so I hereby acknowledge that Al Haq has done so. Heller also finds one ambiguous paragraph in a press release that may or not mean that Al Haq claims to have criticized Palestinian rocket attacks.

Even reading these statements generously, they still don’t come close to justifying Iain Levine’s claim that Jabarin “has been one of the leading Palestinian voices condemning torture by the Palestinian Authority, and suicide bombings and rocket attacks against Israeli civilians by Palestinian armed groups in the West Bank and Gaza.” Indeed, the only statement I’ve found attributed to Jabarin himself is his claim that “Palestinian resistance” is distinguishable from “terrorism.” And of course, the most relevant point remains Jabarin’s ties to the PFLP.

Daily Beast:

The man at the center of the dispute, Shawan Jabarin, runs the human rights organization Al Haq in Ramallah on the occupied West Bank. In 1985 he belonged to a Birzeit University student group associated with the PFLP, indicted as a terror group, by 30 countries including the U.S., the European Union, and Canada. He was convicted of recruiting members for terrorist training outside Israel and served nine months of a 24-month jail sentence….

In its 2007 judgment, the [Israeli] Supreme Court found that alongside activity in [peaceful NGO] Al Haq, Jabarin was also a senior figure in the Popular Front terrorist organization: “This petitioner is apparently active as a Dr. Jekyll and Mr. Hyde. In part of his activities, he is the director of a human rights organization, and in another part he is an activist in a terrorist organization.”

Ken Roth, head of HRW, first denied that Jabarin was ever a member of PFLP, then claimed that if he was, it was ancient history, and then added that he had no such affiliation since he joined Al Haq in 1987, though Roth refused to comment on the Israeli Supreme Court ruling to the contrary.

HRW, of course, rests much of its criticism of Israel on “international law,” or at least its dubious interpretation thereof and of the relevant facts. Let’s note, meanwhile, that terrorist bombings of the sort that the PFLP has been guilty of for decades are against international law.
Where does that leave HRW’s vaunted concern for international law?

H/T: NGO Monitor

UPDATE: I’m not sure how to make this clearer, but given the initial comments let me reiterate that the Israeli Supreme Court found in 2007 that Jabarin was, at that time, a senior official in the PFLP. The issue was whether Jabarin could receive an entry visa into Israel. It was denied. He appealed to the Israeli Supreme Court. The Court found, based on intelligence information provided by the government, that he was in fact a terrorist, and barred him on that grounds. The Israeli Supreme Court, as is well-known, leans left on the Israeli political scene, and is not known for accepting government claims at face value (as when it ordered the government to change the routing of the security barrier, rejecting government claims that the barriers routing was all for security, and not at all political).

And Anne Hertzberg from NGO Monitor writes in to note that the Israeli Supreme Court reiterating its findings in ’08, ’09, and ’10, finding additional, “compelling” evidence.

FURTHER UPDATE: Dear Human Rights Watch: Given that you are being so very ecumenical about who is on your advisory board, I hereby submit my name for consideration. Or do I have to conspire to kill a few children first? Sincerely, David Bernstein, George Mason University School of Law.

Although the title is philanthropy generally, the essays in the book tend to emphasize global and cross border philanthropy, with all the attendant issues of cosmopolitanism, community, etc.  The contributors include major figures such as Jon Elster, Peter Singer, and Alex de Waal.  Like many readers, I  resist edited books, but this one is finely edited and the contributions fit together well.  It would make, for example, a useful book of readings in courses in international relations, law, economics, etc.  I think general readers would find it a coherent volume.

I have a contribution in the volume, “Global Philanthropy and Global Governance: The Problematic Moral Legitimacy Relationship Between Global Civil Society and the United Nations.”  I’m afraid it is the outlier essay in the book with respect to the admirable coherence otherwise noted above – the one that least connects to the topic of philanthropy in a specific sense of philanthropists and their ethics.  It is an essay instead fundamentally about the role of NGOs in the global political space, and a challenge to some of the legitimating roles assumed even at this late date for NGOs.  I’ve been making this critique for a long time, of course.

Cover flap description, below the fold.

So long as large segments of humanity are suffering chronic poverty and are dying from treatable diseases, organized giving can save or enhance millions of lives. With the law providing little guidance, ethics has a crucial role to play in ensuring that the philanthropic practices of individuals, foundations, NGOs, governments, and international agencies are morally sound and effective. In Giving Well: The Ethics of Philanthropy, an accomplished trio of editors bring together an international group of distinguished philosophers, social scientists, lawyers and practitioners to identify and address the most urgent moral questions arising today in the practice of philanthropy. The topics discussed include the psychology of giving, the reasons for and against a duty to give, the accountability of NGOs and foundations, the questionable marketing practices of some NGOs, the moral priorities that should inform NGO decisions about how to target and design their projects, the good and bad effects of aid, and the charitable tax deduction along with the water’s edge policy now limiting its reach. This ground-breaking volume can help bring our practice of charity closer to meeting the vital needs of the millions worldwide who depend on voluntary contributions for their very lives.

The worst catastrophe in China’s history, and one of the worst anywhere, was the Great Famine of 1958 to 1962, and to this day the ruling Communist Party has not fully acknowledged the degree to which it was a direct result of the forcible herding of villagers into communes under the “Great Leap Forward” that Mao Zedong launched in 1958.

To this day, the party attempts to cover up the disaster, usually by blaming the weather. Yet detailed records of the horror exist in the party’s own national and local archives…..

Historians have known for some time that the Great Leap Forward resulted in one of the world’s worst famines. Demographers have used official census figures to estimate that some 20 to 30 million people died.

But inside the archives is an abundance of evidence, from the minutes of emergency committees to secret police reports and public security investigations, that show these estimates to be woefully inadequate…..

In all, the records I studied suggest that the Great Leap Forward was responsible for at least 45 million deaths.

Between 2 and 3 million of these victims were tortured to death or summarily executed, often for the slightest infraction….

The term “famine” tends to support the widespread view that the deaths were largely the result of half-baked and poorly executed economic programs. But the archives show that coercion, terror and violence were the foundation of the Great Leap Forward.

Mao was sent many reports about what was happening in the countryside, some of them scribbled in longhand. He knew about the horror, but pushed for even greater extractions of food.

At a secret meeting in Shanghai on March 25, 1959, he ordered the party to procure up to one-third of all the available grain — much more than ever before. The minutes of the meeting reveal a chairman insensitive to human loss: “When there is not enough to eat people starve to death. It is better to let half of the people die so that the other half can eat their fill.”

Even the previous estimates of 20 to 30 million dead qualify the Great Leap Forward as the biggest single case of mass murder in world history. If Dikötter’s revised figure of 45 million withstands scrutiny, Mao will have definitively surpassed Joseph Stalin’s overall record as a mass murderer (Stalin’s death toll was more evenly spread between several different episodes of mass murder than Mao’s).

Even if the earlier figures turn out to be more accurate than Dikotter’s, it is still inexcusable that the mass murders inflicted by Chinese communism remain so little known in the West. As I noted in my earlier post on the subject, Dikotter’s study is not the first to describe these events. Nonetheless, few Western intellectuals are aware of the scale of these atrocities, and they have had almost no impact on popular consciousness.

This is part of the more general problem of the neglect of communist crimes. But Chinese communist atrocities are little-known even by comparison to those inflicted by communists in Eastern Europe and the Soviet Union, possibly because the Chinese are more culturally distant from Westerners than are Eastern Europeans or the German victims of the Berlin Wall. Ironically, the Wall (one of communism’s relatively smaller crimes) is vastly better known than the Great Leap Forward – the largest mass murder in all of world history.

Hopefully, Dikötter’s important work will help change that.

UPDATE: In this series of posts, I described the similar terror famine that occurred in the Soviet Union in the early 1930s and its implications for international law; see also this post on whether Stalin’s crimes qualify as genocide.

In some ways, Mao was an even worse oppressor than any of the Soviet communist leaders. He combined Lenin’s role as the founder of a totalitarian state with Stalin’s role as the implementer of its largest-scale atrocities. Having a larger population to work with, he also (if Dikotter’s figures are correct) managed to kill more people than all the Soviet leaders and Adolf Hitler combined. There’s no one quite like him in all of world history. Let’s hope there never will be again.