by Jim Lobe
I suppose this is something to be welcomed, but David B. Rivkin, Jr. and Lee Casey — who spent a good part of the George W. Bush administration offering legalistic defenses in the National Review and on the op-ed pages of the Wall Street Journal of the “global war [...]]]>
by Jim Lobe
I suppose this is something to be welcomed, but David B. Rivkin, Jr. and Lee Casey — who spent a good part of the George W. Bush administration offering legalistic defenses in the National Review and on the op-ed pages of the Wall Street Journal of the “global war on terrorism” in every single aspect, including, of course, the “anticipatory self-defense” by the US in invading Iraq, and who have long accused “the Left,” Palestinians, and other presumed enemies of the United States of waging “lawfare” against Washington’s freedom of action to do anything it likes around the world — yesterday published their latest politico-legal analysis in the Journal in strong support of waging lawfare against Russia’s annexation of Crimea. It’s entitled, “The Outlaw Vladimir Putin,” and among other things, it calls for Washington and its allies to challenge the legality of Russia’s actions “in every conceivable legal venue, whether domestic or international,” including the International Court of Justice (ICJ), the same body that ruled in favor of Nicaragua in the case of the CIA’s mining of its harbors back during the Contra War, and against Israel in the case brought by the Palestine Authority against the “Separation Wall.” The defendants in each case ignored the rulings, although President George H.W. Bush eventually quietly agreed to settle the Nicaragua case for $12 million. Rivkin and Casey worked in the Justice Department for both Ronald Reagan, who was responsible for the mining, and Bush I.
What’s remarkable about the op-ed, aside from their advocacy of lawfare (although they don’t use the term), is their seeming lack of self-consciousness about Washington’s own record over the last 30 years or so. For example,
Now Russia has demonstrated that military force in general, and nuclear weapons in particular, may well remain the only reliable means of protection against hostile actions by larger, more powerful states. … This development is certain to have profoundly destabilizing consequences worldwide.
Or:
Russia’s behavior, and its legal and institutional justifications are dangerously destabilizing the existing international system. What is the likely result? The use of force around the world will be encouraged, and the incentive to acquire nuclear weapons magnified.
Well, all of that is true. But what if we replaced “Russia” in that sentence with “the United States” in reference to its invasion of Iraq? Of course, Rivkin and Casey would argue, as they have in the past, that the Iraq war was entirely justifiable as a case of “anticipatory self-defense,” but frankly even if you accept their argument (which is awfully far-fetched given the lack of any serious, let alone imminent, threat posed by Baghdad in 2003), there’s no doubt that the invasion has had “profoundly destabilizing consequences,” particularly given the fact that Putin himself cited it as an important precedent and an example of Washington’s hypocrisy.
Similarly, the authors take offense at Moscow’s demands that, among other things, Ukraine make Russian the country’s second “official” language, ban certain nationalist political parties, and become neutral and non-allied. They insist that these demands “clearly violate the principle of nonintervention in internal affairs enshrined in the U.N. Charter and customary international law.” Now think of the innumerable times that Washington has demanded certain changes in the domestic and foreign relations of weaker countries as conditions for friendly relations and/or aid. Do Mssrs Rivkin and Casey consider, for example, US demands for the extradition of drug traffickers from Mexico or changes in Uganda’s draconian law against LGBT individuals or other countries to cut oil purchases from Iran to be violations of the principle of nonintervention? I’d be very surprised if they did.
They argue that Moscow should also be held accountable for its alleged violations of the Geneva Conventions and the laws of war which, of course, are precisely the international legal standards that Washington stands accused of abusing by national and international human rights groups in its conduct of wars in Afghanistan and Iraq, not to mention its use of drones to eliminate targets in Pakistan, Yemen, and elsewhere. Of course, their interpretations of these laws, when applied to US actions, tend to be quite liberal and forgiving despite the not inconsiderable number of innocent men, women, and children who have been killed by US forces in these conflicts. Moscow’s use of troops who have removed their Russian insignia, as well as the failure to promptly repatriate captured Ukrainian troops and equipment from Crimea, however, should be considered “major violations” of the laws of war and treated accordingly despite the fact that Moscow’s takeover of Crimea was conducted relatively peacefully and virtually with no bloodshed.
Now, I don’t mean to be justifying anything Russia has done and agree completely with the authors that the Russian action sets a terrible precedent. But, during their service in government, the United States, among other things, carried out covert wars against Afghanistan, Nicaragua, and Angola, invaded Grenada (on the totally phony pretext of protecting US medical students there), and Panama. During the last 12 years, they defended wars in Afghanistan and Iraq and virtually all of the abuses, including “enhanced interrogation techniques,” associated with those. As I said, there’s a certain lack of self-consciousness here, which is rather typical of neoconservatives.
But, by all means, we should take the Russians to the ICJ. That could be a very useful precedent.
Photo: President George W. Bush and former President George H. W. Bush greet Russian President Vladimir Putin at the Bush family house in Kennebunkport, Maine, in July 2007. Credit: AFP/Getty Images/Jim Watson
]]>The Washington Post’s Ellen Nakashima examines the question of what constitutes war if the trigger point originates in cyberspace:
Deciding what amounts to an act of war is more a political judgment than a military or legal one. International law avoids the phrase in favor of “armed attack” and “use of force.” [...]]]>
The Washington Post’s Ellen Nakashima examines the question of what constitutes war if the trigger point originates in cyberspace:
Deciding what amounts to an act of war is more a political judgment than a military or legal one. International law avoids the phrase in favor of “armed attack” and “use of force.” Retired Gen. James Cartwright, former vice chairman of the Joint Chiefs of Staff, has often said that an act of war “is in the eye of the beholder.”
As Cartwright has pointed out, the United States didn’t go to war with North Korea after it sank a South Korean warship in 2010, nor with Iran after the U.S. Embassy in Tehran was seized in 1979. Would we want to start a war over a virus that causes a power blackout? And if not, what other actions might the government contemplate?
The government has defined an armed attack in cyberspace as one that results in death, injury or significant destruction, as Harold Koh, the State Department’s chief legal adviser, recently put it. Here’s the rule of thumb, as Koh stated it: “If the physical consequences of a cyberattack work the kind of physical damage that dropping a bomb or firing a missile would, that cyberattack should equally be considered a use of force.” If an attack reaches those levels, then a nation has a right to act in self-defense.
Columbia Law School professor Matthew Waxman elaborates on the legal and policy dimensions at the Lawfare blog. Demonstrating attribution and the need for self-defence will be a multi-dimensional, complicated process, he writes:
As to the last questions, whatever certainty about the perpetrator is necessary to satisfy internally the legal self-defense question, a state will also need to explain and justify its military response externally, to domestic and international audiences – and those exercises may look very different. A state may not be willing to disclose publicly some of the intelligence information and analysis used to satisfy its internal legal analysis (I’m assuming that the attribution of a major cyber-attack could involve a combination of sophisticated digital forensics, human intelligence, reliance on circumstantial evidence and reasoning, and other means). Even if it chooses to disclose intelligence, that information might be unintelligible or unpersuasive to skeptical outside audiences. And the threshold of certainty necessary to win support from allies and partners may be higher (or perhaps in some cases lower) than that needed to satisfy legal requirements.
In terms of evolving international law in this area, the challenges of demonstrating attribution – besides just assessing it internally – will make it especially difficult to develop consensus legal appraisal of self-defensive actions against cyber-attacks, because so many of the key facts about the attack will be contested, secret, or difficult to observe.
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