The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, April 4, 2015, 9:55 AM

Happy Anniversary! On Tuesday, John Bellinger marked ten years since passage of UN Security Counsel Resolution 1593, the resolution that referred the situation in Darfur, Sudan to the Prosecutor of the International Criminal Court. While the United States is not party to the ICC’s founding treaty, the Rome Statute, and actually abstained on the resolution, John noted that this abstention was the beginning of a shift in U.S. policy toward “a pragmatic approach of ad hoc cooperation with the ICC.” Now, a decade after UNSCR 1593, John argued that the Security Council should refer another situation to the ICC for investigation: that of the Islamic State.

The ICC may already have its hands full---or not. Earlier this week, Palestine formally became the 123rd State Party to the Rome Statute. But while Palestinian officials had previously signaled that they would refer the situation in Palestine---including the 2014 war in Gaza---to the ICC’s Office of the Prosecutor, no such referral has materialized. Alex Whiting explored some possible reasons for delaying such a referral, which he noted is a prerequisite for an investigation of the situation.

Earlier this week, Eric Jensen posted an already-completed investigation of the 2014 war in Gaza conducted by several former U.S. military officers. The report draws several lessons regarding the law of armed conflict from the 2014 war, including that constraints on LOAC authority should not be imposed based on claims of law violations, but only when balanced with mission imperatives.

Ben linked us to another report on law and warfare, this one written by a British think tank and entitled, “Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat.” It opens thus: “The British military is now thoroughly entangled in the net of human rights law---often to the benefit of our country’s adversaries. The British armed forces remain the most accomplished in Europe; but they suffer courtroom defeat after courtroom defeat in London and Strasbourg.”

Paul Rosenzweig reported the news that President Obama issued an Executive Order on Wednesday that allows for the imposition of economic sanctions and travel bans on individuals or entities who commit cyber treachery. Paul argued that, while the provisions potentially conditioning access to U.S. markets on good cyber behavior seem to be fairly sensible, it’s especially notable that the order characterizes malicious cyber assaults as a “national emergency” and lays the groundwork for a “whole of government” response to such assaults. Paul also included a minor correction to his initial post. He first wrote that the order wouldn’t apply to the Sony hack because the company does not qualify as critical infrastructure. As it turns out, Paul informed us, motion picture studios somehow do qualify as critical infrastructure.

Herb Lin concurred with Paul’s assessment of the order’s provisions, but noted that it ignores what happens after sanctions are imposed. Suppose the U.S. government imposes sanctions on some Chinese entity for purported malicious cyber activity, and suppose the Chinese government responds by making it even more difficult for U.S. companies to do business in China; what does the U.S. government do then?

Ben noted that a recent editorial by the New York Times described Syrian President Bashar Al-Assad as a “necessary, if still unpalatable, potential ally in combating the Islamic State.” We would do well to remember these words the next time the paper attempts to invoke its moral authority on any issue, Ben mused.

Jack pointed out that the same legal theory the Obama administration used to disregard multiple statutes to transfer five GTMO detainees in securing Sgt. Bowe Bergdahl’s release could also be used to unilaterally close the prison facility. The President has stated he believes the restrictions on transferring GTMO detainees are “under certain circumstances” a violation of the separation of powers; under the administration’s theory, Sgt. Bergdahl’s release was one of these circumstances. Insofar as the President believes the existence of GTMO threatens national security and thus constitutes another of those circumstances, the administration could use this same exception to transfer all detainees to the United States and close the facility.

Ashley Deeks explained the international legal justification provided for the Saudi-led intervention in Yemen. Ashley noted that using the consent of Yemeni President Abed Rabbo Mansour Hadi as sufficient legal authority for military intervention, as the coalition may be doing, is problematic, as President Hadi has been forced out of the country by the advance of Houthi rebels.

R. Taj Moore brought us a collection of the key primary source materials on the Iran nuclear framework agreement reached this week.

Carrie Cordero looked into some of the recommendations for FISA reforms included in last month’s Brennan Center report on the FISA Court. Among the recommendations she finds problematic are the end or change of programmatic surveillance, the introduction of a FISA special advocate, and the restoration of the primary purpose test.

In this week’s Foreign Policy Essay, Andrew Scobell and Mark Cozad described the quandary that China faces with North Korea: the status quo is fragile and far from ideal for China, but attempting to steer North Korea away from its belligerent posture endangers whatever little stability there is.

In other China-related news, Mira Rapp-Hooper brought us the newest installment of the Asia Maritime Transparency Initiative, which looks at defense spending among China’s neighbors.

The mysterious Lawfare reader behind the “notorious” drone strike cake was back at it this week, showing off a new “Zero Dark Thirtieth Birthday Cake.”

On Monday, Ben joined Gabriella Blum on the Diane Rehm Show to talk about their new book, The Future of Violence: Robots and Germs, Hackers and Drones——Confronting A New Age of Threat. In the book, Ben and Gabby discuss the weaponization of new technologies by individuals, and on Thursday Ben showed us an example of what that could look like: a paintball-shooting drone.

Paul showed up on this week’s Steptoe Cyberlaw Podcast to talk about ICANN, while the rest of the Steptoe team updated us on all things cyber.

The Lawfare Podcast this week featured the book launch event Brookings held for Jessica Stern and J.M. Berger’s new book ISIS: The State of Terror, excerpts from which we ran last week as well.

Ben linked us to an Intelligence Squared US debate of particular interest to Lawfare readers. Gene Healy of the Cato Institute, Deborah Pearlstein of Cardozo Law, Philip Bobbitt of Columbia Law School, and Akhil Reed Amar of Yale Law School debated the resolution “The president has exceeded his constitutional authority by waging war without congressional authorization.”

And that was the week that was.