A Call to Bureaucrats

In a speech made in Accra, Ghana in 2009, President Obama explained that successful democracy requires strong institutions – not strong men. Although he was directing his remarks to African nations, the sentiment should resonate with Americans today.

The United States has never been confronted with a less prepared candidate – one who makes decisions without forethought or careful consideration of the consequences. When applied to national security, this approach to decision-making will have disastrous and ineffective results.

Based on Trump’s rhetoric, immigrant and Muslim communities are under threat of deportation, seclusion, and massive violations of basic civil rights. The dark, near past of Guantanamo’s indefinite detentions may reemerge with American citizens in the cells.  The sanctioning of torture and disregard for international law may resurface. And the humanitarian crisis in Syria will worsen if the US shirks its responsibilities for civilians.

In a country that prides itself on the strength of its democracy, our institutions must demonstrate their worth. Those 2.8 million people working for the federal government in the US and around the world must remember their oaths to support and defend the Constitution of the United States.  Protect all of us from unreasonable searches and seizures and from allowing the government to widen the exceptions. Respect the Convention Against Torture which prevents all forms of torture and indefinite detention.  Respect the Geneva Conventions.

But part of upholding their oaths is insisting that the impending administration do the same. Without those steadfast commitments to our institutions, it is not an impossibility for them to crumble. 

From Russian to Wikileaks: Outside Interference in the US Election

The 2016 Presidential Election has been one of the most tumultuous elections in US history. The candidates, former Secretary of State Hillary Clinton and Donald Trump are quite possibly the two most polarizing candidates ever. However, this is not the only reason this election has been turbulent. This year appears to have an unprecedented level of outside inference in the election.

The most notable interference is aimed at the Clinton campaign and the Democratic National Committee (“DNC”) from both Wikileaks and suspected Russian hackers. Before the Democratic National Convention in July, a Russian hacker group, Guccifer 2.0, released emails from the DNC that proved that there was a clear bias for Clinton over then nominee, Senator Bernie Sanders. This revelation led to the resignation of chairperson Debbie Wasserman Schultz. More recently, the United States has officially stated that it believes that Russia is behind the release of that information. The Department of Homeland Security and the Director of National Intelligence issued a statement confirming Russian involvement. Moreover, some states have reported that hacks against their election systems originated from Russia. Putin emphatically denied Russian involvement in these hacks.

Furthermore, Wikileaks is apparently interfering in the U.S. election. In the most recent release of emails from Wikileaks, emails from Clinton’s campaign manager, John Podesta, were released. These emails seemed to signal that there were communications between the DNC and the Clinton campaign about debates in the primaries. Wikileaks also released the transcripts of Clinton’s speeches to Goldman Sachs. This Sunday, Wikileaks tweeted that it would be releasing another round of its election coverage. 

The founder of Wikileaks, Julian Assange, now is facing backlash from Ecuador – the country currently providing him asylum in their London Embassy. Ecuador announced that it was temporarily cutting off Assange’s internet connection due to concerns that Ecuador might be drawn into the U.S. election. They did make clear that they were not preventing Wikileaks from publishing new material. Assange originally sought asylum from Sweden who is still attempting to prosecute him for rape – Assange claimed that it was actually an attempt by America to extradite him. Moreover, Assange is facing criticism that him and Wikileaks are pro-Trump - they deny this accusation. Wikileaks also faced criticism that it works for the Kremlin.

Recent polls suggest that the recent data dump has not done much to damage Clinton’s standing in the polls. However, it is still problematic that a state-actor and a major organization, possibly supported by a state actor, are interfering in a U.S. election.

On the other side, Trump appears to be communicating with a Russian server according to a group of computer scientists. This group began looking into whether Russian servers were attempting to attack the GOP and Trump campaign, like the DNC and Clinton. By tracking domain name system (DNS) databases, these scientists realized that a Trump server and an server belonging to Alfa Bank (which has ties to Putin, Ukraine, and Russia) were communicating. Further, these scientists realized that this server was handling a suspiciously low amount of traffic. Moreover, the server was set up to communicate with a few select IP addresses. While these scientists grew more and more suspicious, the Trump campaign’s policies began to appear more and more Russian friendly. In fact, around this time, Trump called for Russia to “find” Hillary Clinton’s missing emails. The communication between the two servers also increased during important times in the election season, like the conventions. Suddenly, when the New York Times began to question Alfa Bank about the communications, the server shut down. Four days later, the communication began anew with a new host name. Now, the Slate article makes clear that all this evidence does not guarantee that there is in fact communication is occurring, however it certainly offers “a preponderance of evidence” that something weird is happening.

It will be interesting to see how the last week of this election season plays out and if any other cyber bombshells drop before the peoples’ final ballots are cast.

Is the ICC in danger?

Authored By: Elena Sakelaris

The International Criminal Court was established by the Rome Statute to exercise jurisdiction over some of the most serious international crimes.  As of last Friday, there is one less country under the Court’s jurisdiction.  South Africa decided to withdraw from the ICC after Burundi left the ICC.  Justice Minister Michael Masutha along with other South African officials argued that the Rome Statue conflicts with South Africa’s law that gives sitting leaders diplomatic immunity.  Support for the ICC in Africa has been waning over the past few years as the majority of individuals convicted are African.

Diplomatic immunity is not a new concept; a vast majority of States exercise this principle.  However, many States also recognize the need to limit diplomatic immunity from extending to grave crimes, such as the crimes over which the ICC has jurisdiction.  Throughout history, the severity of a crime generally relates to the position held by the individual committing the crime, and the more powerful a person is the more severe the crime can become.  The atrocities committed during World War II under Hitler’s reign came from the top down.  Powerful individuals, sitting leaders, have the ability to commit the greatest horrors—genocide, war crimes, crimes against humanity, crimes of aggression.  The crimes that the ICC seeks to prosecute are only those of the most serious nature.  The ICC serves an important purpose in preventing or mitigating mass atrocities in places where authorities are unable or unwilling to bring the violators to justice.

South Africa ignored an order by the ICC to arrest President Omar Hassan al-Bashir of Sudan, who faces charges of crimes against humanity, genocide in the Darfur region of Sudan, and war crimes.  Under the Rome Statue countries are obliged to arrest anyone sought by the tribunal.  In refusing to arrest Mr. Bashir, South Africa failed to uphold its obligations under the Rome Statute. 

Many individuals will surely ask why does it matter that South Africa is withdrawing from the ICC when the United States is not under the Court’s jurisdiction?  At this point the biggest fear surrounding South Africa’s withdrawal is that this will begin a trend that other African countries will also leave the ICC.  Furthermore, many human rights advocates were appalled by the decision as well.  Withdrawal from the court could have devastating effects on individuals who have been victims of these grievous crimes.  Leaving the ICC also represents a digression from the advances made by South Africa in promoting human rights within the continent.  Human rights advocate groups within Africa have also argued that the decision to withdraw from the ICC without parliamentary approval is in violation of domestic law. 

It is too early to say whether or not there will be a mass exodus from the ICC, especially of other African Countries following South Africa’s example.  This does mean that South Africa will be accountable for virtually nothing as the country will no longer be subject to jurisdiction under the ICC.  International cooperation is already a delicate topic, and having a prominent country leave the ICC furthers unease internationally because it creates a fear of accountability regarding serious violations of international law and human rights.  

The Candidates' Take on National Security

Authored By: Matthew Goepfrich

“Whatever happened to the element of surprise? We announce we are going after Mosul…for about three months. These people (high profile ISIS leaders) have all left. Douglas MacArthur [and] George Patton [are] spinning in their graves when they see the stupidity of our country”

The above is a Donald Trump quote from the last presidential debate giving significant insight into the ignorance many nonmilitary focused minds have with regard to defeating and combating ISIS. From a pure strategy point it no doubt speaks to many as being a sound argument. Why are we announcing for three months the target of our coalition’s planned military operation? As Donald Trump points out, doing so allows all high value ISIS leader targets to move out.

But people who accept and promote this view point are failing to understand the laws of war at play regarding the announcement decision, and further overvaluing the strategy that surprise would gain for ground forces involved on a sustained attack of Mosul. Indeed, from a purely strategic point, announcing for three months that Mosul will be attacked drains the enemy to exhaustion psychologically in anticipation and constant guard for the inevitable attack. Meanwhile, coalition forces for three months’ practice, improve and verify points of attack and rules of engagement for protection of citizens all while getting a good night’s sleep knowing the attack isn’t that day. And it is this overarching desire for minimizing civilian deaths that makes the three-month announcement both legally sound and more so legally demanded under IHL.

Customary international law obligates countries to give advance warning prior to an attack which may affect the civilian population. Additionally, this has been codified in Protocol I, Article 57(2)(c), specifically calling all warring parties to take the precaution of giving “effective advance warning…of attacks which may affect the civilian population.” This principle, while limited to international armed conflicts, is expanded to include non-international armed conflicts like the attack on Mosul specifically by the Amended Protocol II to the Convention on Certain Conventional Weapons.

Limiting civilian casualties is a principle of IHL and even human rights law as much as it extends and exists in the framework of armed conflicts. Warning then for three months that Mosul will be attacked allows citizens - to the extent possible - to take precautions to move out of the city. But we know how unlikely this is at this point.

ISIS is using citizen populations as human shields. Further, Mosul is being used as the sex slave capital for ISIS. Minority Christian Yazidi women, as many as 3,500, are being held in Mosul as hostages. This three-month period has allowed coalition forces to work on strategic engagement plans to both identify the locations of the hostages, the locations of the human shields, and further practice movements for funneling and protecting these noncombatants out of harm during the assault on Mosul. In this regard, coalition forces, including the Iraqi Army, are living up to the duties of IHL.

Ignorance of these facts is dangerous for anyone seeking the office of the President. MacArthur and Patton are not spinning in their graves. Rather, they are applauding our efforts to live up to the international expectations regarding civilians in times of war.

The Future Application of IHL and ICL

Authored By: Teresa M. Dettloff

International Humanitarian Law (IHL) and International Criminal Law (ICL) have been extraordinarily successful in bringing to justice war criminals who have committed some of the worst atrocities in history, including the genocide in Rwanda, the civil war and genocide in the Former Yugoslavia, and the conflict in Sierra Leone and Lebanon, all of which still have active prosecutorial tribunals. Each of these conflicts has one thing in common—they were predominantly state to state  or intra-state conflicts, and the criminals indicted held positions of power within their respective governments, whether it be political or military positions.

While this has been a success for IHL and ICL, the international landscape has changed, and these bodies of law will have to as well to adapt and continue to be successful and relevant. The most important distinction between conflicts then and now are the parties. In the past conflicts have been between states or warring factions within a state, most conflicts and violations of IHL now occur in confrontations between states and non-state actors. ICL and IHL need to be applied to non-state actors.

For example, Al-Shabab has been wreaking havoc in Somalia, attacking a military base outside of Mogadishu last July. More recently, an individual in Nice, France drove through a crowd during Bastille Day celebrations. What was most alarming about this attack was that there was nothing patently illegal in the preparations; the perpetrator rented a lorry, and drove it himself through a crowd full of people, killing and injuring hundreds of people before shooting himself.

Who do we hold accountable in these attacks? Who could we bring before a tribunal?

ICL is now firmly establishing the principles of joint criminal enterprise (JCE) liability, but whether or not there are more conflicts where this will be applicable remains to be seen. The fascinating part about international law is the fact that the area is so grey; it is a constantly changing and developing area of the law. The issue, however, is that the landscape to which the law applies is rapidly changing as well, and developments in international law lag behind what’s happening out there in the world.

This is not to say that we should abandon international law; in fact, I would argue quite the opposite. International law is a fundamental body of law that not only creates a dialogue about issues between nation-states, but it has resulted in tangible successes. However, to continue to be successful, we need to develop principles of international law that also apply to non-state actors. How that is to be done remains to be seen, but if we continue to develop principles of international law within tribunals, adapting those principles to the changing landscape of the international community, I have no doubt that we can resolve the current issues through tribunals successfully, as we have with the ICTR and ICTY. But if the law can’t keep up with what’s going on out there, it may be years before IHL has an application to modern-day war criminals.