The Volokh Conspiracy

Iran is to cyberwar what 1930s Spain was to airwar – contested ground where everyone tries out new technology and tactics.  After being on the receiving end of Stuxnet, which sabotaged the Natanz enrichment plant and showed that cyberweapons could replace cruise missiles, it looks as though the Iranian government has gone on the offensive.

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.

Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful).

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.

Here’s the text of the federal female genital mutilation ban, together with the factual findings:

(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?

Featuring British NGO representative Leslie Vinjamuri (pro-intervention, sees no legal problem), American peace activist Robert Naiman (anti-intervention, considers the intervention unconstitutional), and me (pro-intervention, but opposed to Obama doing it in violation of the Constitution and the War Powers Act). On the RT (formerly, “Russia Today”) television program “Crosstalk.” 27 minutes.

I’m not going to discuss the moral, legal, or diplomatic implications of this move. But I do recall (though I don’t have links handy) that various “human rights” activists have been claiming since Israel’s withdrawal from Gaza that Israel was nevertheless “occupying” it via a blockade. Moreover, even if the blockade didn’t amount to an occupation it was immoral, illegal, and so forth.

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.

Some common sense from Yale Professor Jed Rubenfeld. I’d pick out an excerpt, but it’s too good. Read the whole thing.

H/T: Instapundit.

Back in 2006, I wrote: “I’ve noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in ‘international law’, and the idea that it should trump any other conflicting consideration.”

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.

As I noted a few days ago, Justice Richard Goldstone wrote a Washington Post op-ed last week in which he states that contrary to the implications of his eponymous report, Israel did not deliberately target civilians in Gaza during Operation Cast Lead.

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 Continue reading ‘Human Rights Watch (and Amnesty International) on Goldstone Retraction’ »

Ronald Radosh, commenting on Justice Goldstone’s bizarre “just kidding” op-ed in yesterday’s Washington Post about the eponymous Goldstone report on Israel’s conduct in Operation Cast Lead (despite the dateline, it’s not, near as I can tell, an April Fool’s joke):

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.

I’ve long been interested in the occasional anticooperative effect of law — the tendency of the threat of criminal punishment to sometimes discourage cooperation with the legal system (even though the deterrent effect usually tends to encourage following the law).

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.

U.N. Security Council Resolution passes 10-0. Live feed from Benghazi on Al Jazeera English. The Resolution authorizes “all necessary measures” except military occupation of Libya. By my reading, the authorization includes destruction of Gaddafi’s anti-aircraft defenses, and of his air force and its mercenary pilots. As President Reagan once said, “We begin bombing in five minutes.” I hope.

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!

Right here, provided by the Inner City Press, which has long been the best English-language media covering the United Nations. The resolution authorizes member states–acting either through regional organizations or nationally–to “take all necessary measures” to establish a no-fly zone over Libya. It further authorizes the member states to enforce the arms embargo against Libya by interdicting ships on the high seas. The resolution forbids the establishment of an occupation force. A vote is set for 6 p.m. Eastern Time. On Twitter, @SultanAlQassemi writes that according Al Arabiya’s UN correspondent, China, Russia, and South Africa (in other words, the pro-dictator caucus on the Security Council) and two other countries will abstain.

(Update: Pleased to see that the Journal has appended the following correction to the online edition:)

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. Continue reading ‘Wall Street Journal Mistaken About the Obama Administration and Protocol I?’ »

A few days ago, I asked the question (over at the international law blog Opinio Juris), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond. (You should also check out Jack Goldsmith’s discussion of US domestic law relevant to intervention at Lawfare.)

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. Continue reading ‘The Law and Politics of US Intervention in Libya’ »