tv Discussion on International Law and Cybersecurity CSPAN April 5, 2016 11:30pm-1:27am EDT
you're a history junkie? you've got to watch. >> whether we're talking about a congressional hearing or we're talking about an era in history, there's so much information that you can convey if you've got that kind of programming. whether it's at the capital or on the campaign trail, they have a camera. they're capturing history as it happens. it brings you inside of these chambers, inside of the conversations on capitol hill and lets you have a seat at the table. you can't find that anywhere else. >> i'm a c-span fan. >> i'm a c-span fan. >> i'm a c-span fan. >> yes, i am a c-span fan. >> and that's the power of c-span. access for everyone to be part of the conversation. ♪ former state department attorney
harold koh spoke about current issues in international law including cybersecurity and counter-terrorism. he criticized presidential candidates for advocating the use of waterboarding and carpet bombing. this is two hours. >> this is going to be a i think even more edifying and certainly a more settled event here at brookings in comparison to the one we had yesterday. maybe some of you, i see a couple of heads nodding around here. we were honored by having the president of turkey here and we were not so honored by having some fairly vigorous protests outside up and down massachusetts avenue yesterday. so today, we're going to step back a little bit from some of the more angry and fear-driven issues of the day and look at
the world from the standpoint of international law. and let me say a couple of words about the origin of the stephen breyer lecture here at brookings. the associate justice himself is a friend of this institution. he is a friend of many of us who work here. he is certainly a friend and an admirer of our lecturer today, harold koh. he has over the years had various connections with brook ags including writing his first book under the imprint of the brookings institution press. i think it was about 35 years ago, maybe even longer than that. and we've had events for him when his recent books have come out. and back in 2014, the brookings institution entered into a
partnership with the hague institute for global justice and we decided to work together on an annual lecture followed by a discussion of the sort that we are going to have today. and i'll come back to the institute which is represented here and i'll say a word or two about him in a moment. but i would like also, because of my own personal background with harold, to say a few things about him. i had the zing pleasure of working with him in many government during the clinton administration when he was the assistant secretary of state for democracy and human rights. and as we all remember from the 1990, there were challenges on
virtually every continent on these issues. and harold was not just a thought leader, not just somebody who brings the discipline of his profession to diplomacy but he was very much an activist and a superb diplomat. and i might add his diplomatic skills were often evidenced inside the united states government because making sure that human rights and democracy is a key part of the american foreign policy agenda has not always been an easy task and an easy challenge and he was more than up to it. when the clinton administration ended, my late wife and i went up to the groves of academe in new haven, connecticut and nobody was more helpful it,
hospitable and a better mentor to me during the academic year that we spent at yale than harold. and i will always be grateful to him and to his wife and to his family for taking care of us then. and as you all know, he has been active again in government. in the state department and has now returned to yale where he is a sterling professor of international law. and it is hard to imagine somebody more suitable both to the topic today and also to the time that we are living in. after harold speaks to you, he is going to be joined by michele
koenigs who is the president offyer just an acronym that makes pretty clear what it's all about and abi williams who is the president of the hague institute who will be part of the discussion and also moderate the discussion that the two of you will have with harold. and now it is my great pleasure to welcome here to the lectern ingrid von engles ishoeven who is the deputy mayor of the hague and who is therefore representing the other half of the partnership that is bringing there event to you today. you'll have a few words for our guests. and then we will have the pleasure of listening to harold. so please, ingrid, come on up here. thank you so much.
ladies and gentlemen, good morning. it's my honor to welcome you here on behalf after the city of the hague. and i want to start with thanking justice breyer for giving his name to this lecture. it's our honor to be able to use his name. >> i always want to thank brookings for its hospitality and i want to congratulate you on your centennial. it was in 1916 when robert brookings worked with government reformists to create this first independent institution devoted to political study. top fact-based study of public policy. fact-based. that's so needed in these days. and today, it's an honor to listen to such distinguished speakers as michele coning, president, professor koh already introduced, abi williams from
the institute of global justice will be our skilled moderator today. and you all expected to hear the minister for justice and security. but the minister has decided to stay in the hague in view of the letter to parliament that has to come and the many questions that need to be answered in the run up to the debate next week about the brussels attacks and of course, we regret very much that he is not here but as a politician, i understand fully why he stayed in the hague. the brookingss institution is most influential, most quoted and the most represented think tank in the world. so this is the place and this is the time to discuss crucial matters together. i think it's excellent that this meeting is being jointly hosted by brookings and the hague institute for global justice. our mayor, and the former
american secretary of state madeleine albright be as the founding father and founding mother of the institute. and earlier this year, can our mayor had a personal conversation with the secretary-general of the u.n. mr. ban ki-moon. and during this meeting, he said that the city of the hague is promoting u.n. sustainable goal 16 for peace, justice and strong institutions. and in this area, the city of the hague has a reputation to maintain. we are internationally known and recognized as a legal capital of the world. we have a strong tradition in the areas of peace, justice, and the institutions. and we see opportunities for development. and therefore, we cooperate with for example the renowned institute on international role. these days, there is much interest in the development of knowledge in the field of
cybersecurity. and this is exactly what the hague can contribute. in this field, are we are the gateway to europe. thanks to collaboration between businesses, government bodies and knowledge institutes, regional, national and international. and the use of this triple helix cooperation is a condition for success. in fact, the message these days is very straightforward. do cooperate. commerce, think tanks, government bodies. if everyone stays inside their own safe environment, no innovation is possible. but if you put your hat bob your own organization's fence you can come up with solutions no one ever could think of. today, the topic of the justice breyer lecture on international law is the emerging law you have
21st century war. a subject that really matters. i could mention the recent atrocities in brussels and turkey. the continued strife and unrest in the middle east, and the conflicts in africa. there is a time for reflections. time for new insights. time for new initiatives. there's only one way to emerge from this crisis. cooperation, national and international. the hague security delta already has a wealth of knowledge in the field of cybersecurity. the cyberworld promises many benefits. we very an incredible amount of digital information available to us. and a smart user of this data, for instance, big data for humanity or for peace as it's known can be used to avert conflicts, maybe even wars. and the hague wants to take the
lead in all this. but digitalization brings new problems, as well. critical infrastructure comes under pressure if criminals take control of it. we need international regulations and laws in a digital world. and another question today is how do we protect digital privacy in a world without boarders? where terrorism has to be dealt with? there are many more questions popping up in this respect about our topic, the emerging law of the 21st century war. so let's share our vision, be open to each other. brookings can help us to bring our very best qualities to the surface. and we will need to do that to get closer to a safer and more just world. and the city of the hague wants to be your partner in this. i wish you a very pleasant lecture and i do invite
professor koh to the stage. thank you so much. [ applause ] >> thank you, madame deputy mayor. thank you to the sponsoring institution, the brookings institution with whom i've had such a wonderful cooperation over the years. the city of the hague which i visited and admired for decades and the hague institute for global justice under its brilliant leader abi williams. it is a great honor to be here to deliver this lecture. my own perspectives as strobe described are having been an international law professor for 35 years, 20 years as an human rights lawyer, ten years in the u.s. government and five years as dean of a law school.
don't add these up. some of these are overlapping. but in each of these capacities i've had the great honor to work from and learn from justice stephen breyer who is our great transnationalist justice of this era. he follows in a tradition of justices mentioned here, just to single out two, melville fuller and former president william howard taft were founders of the american society of international law almost 100 years ago. and it is justice bleier in his various works and his most recent book "the court and the world" his opinions has sought to give the decent respect to the opinions off mankind that the declaration of independence originally mandated. if there is a core idea that drives his transnationalist
jurisprudence, it is simply in that there is a transnational public law emerging rooted in shared norms that have a similar meaning in every national system. for example, the idea of cruel or degrading treatment, society displaced and the emerging law of transborder trafficking. what i want to talk about today about is the emerging law of 21st century war which i think has been in many ways the most discussed and the least understood of these bodies of law, and here i am again going to pay special tribute to my friend and mentor stroke talbott with whom we had worked together during the clinton administration particularly during the coso vo crisis. but when we can wie got to yale in september, 2001, one of the first discussions we had after
9/11 was about whether this would be a situation where law would be abandoned. or whether law would be modified to address the whole range of emerging problems. and it was stroeb's commitment which i very much shared that the law might change but there would be law. we would not enter what you could call a law-free zone. what we've seen in the years since is that new tools of 21st suchbt law have emerged. cyberconflict, drones, special operations, private security contractors now increasingly discussion about autonomous and semi autonomous robots and people ask the question, what are the rules? what is the emerging law of the 21st century? and there are two basic competing notions that come into play. a notion put forward by some is the notion that we are in a law-free zone that because these
technologies did not previously exist that there is no law to apply. or that there is a world of legal black holes, places like guantanamo or tribunals which don't have to answer to law like military commissions. but the other view which is the one that i think has prevailed is the notion that we are in a moment where we translate what month tes skew calls the spirit of the laws to the present day situation. there are many interpreters but it's extremely important that are that translation exercise occur in particularly because we are in a time whether he both the domestic and international legislative systems are in stalemate and peculiarly paralyze. so if there is law to be applied, it is law that derives from the spirit of the laws that governed 20th century and 19th century conflicts. and what it takes only a moment
of reflection to see is that there is a big difference between a black hole and a translation exercise. and a black hole, you're operating outside the law. in a translation exercise xrks you may debate whether the translation is correct. but there is no doubt that we're operating within the framework of the law, not denying application of the law all together. what i want to argue today very quickly is that in these particular areas, a body of law has emerged which is transnational little shared with other developed nations particularly our european colleagues. now let me start with the basic question. which is is the obama administration's approach the same as the bush administration's approach? this is a simplistic idea sometimes set forward by media. let me suggest six ways in which there are crucial differences. first, that this administration
does not speak of a global war on terror. but the notion that there are military operations outside of hot battlefields against terrorist networks that are contained by international law principles of state sovereignty. secondly, under domestic law that we do not operate on unenumerated constitutional powers of the president alone but on congressional authorizations plus constitutional power. that as a matter of international law, these domestic authorizations are informed by the laws of war although there are those in even the d.c. circuit who disagree. that we do not use an either or approach is this war or law enforcement but that we combine them into a hybrid paradigm. so what may be appropriate for an isil leader in syria may changing from a war approach there to a law enforcement
approach if that isil leader is found in say brussels. fifth, that we do not simply operate based on labels. calling someone an enemy combatant doesn't suddenly say that anything against that person goes. instead, it is a fact-based inquiry as the deputy mayor said about who the individuals are who are being subjects of military action. and finally, an absolute commitment to humane treatment both in the p detention and interrogation. these are important differences and they fit into what i would say is a broader obama administration legal theory of an integrated targeting and detention approach as part of a general strategy of spectacular the power. you've heard this from in this administration repeatedly, particularly secretary clinton a notion that targeting should be lawful, detention should be both legally authorized and done
under lawful conditions can with the fruits of the -- of i legal detention not being used in subsequent proceedings. and lawful cooperation with other estates who are also at war and relying on law enforcement authorities and i know that my colleague from euro just will say more about this in the discussion session. so where do these legal rules come from? three sources, international criminal law as it's developed since nuremberg, particularly now in the international criminal court rome statute which addresses genocide, war crimes, crimes against humanity and after 2017, the crime of aggression. about the laws of armed conflict sometimes known as international humanitarian law, and international human rights law whether he it is not ousted by other bodies of law as a controlling. what does it mean to be in an armed conflict?
we're in an armed conflict whether he we're fighting with an organized armed group which have a particular nature, intensity and scope. and that armed conflict can either be an international armed conflict or a noninternational armed conflict as declared by either the state itself orbit international committee of the red cross. we're very familiar with two kinds of armed conflict. u.s. versus germany an international armed conflict in world war ii, a noninternational armed conflict of the type we saw in columbia, the government versus the farc, a civil conflict. but what we've seen is the emergence of another kind of noninternational armed conflict between a nation state and a transnational terrorist network. and it was justice breyer hong others who in the ham dang case in 2006 identified the conflict with al qaeda as this kind of noninternational armed conflict.
we are in a war not with terror but with al qaeda account taliban, and associated forces. this administration has construed isil or desh as part of these associated forces the key ta they be cobelligerents in the sense of having entered the fight against the united states alongside other armed groups. and the hot active battlegrou battlegrounds, active theaters, afghanistan, iraq and syria, russia says it has been invite there had by assad. the united states is participating there against isil. what law must the u.s. follow? well, under traditional laws of war, the law of initiating war, and the law during wartime under domestic law following the constitution and the authorization for use of military force which brings to us what has been the position of the u.s. government since the
second half of the bush administration. the united states is in a noninternational armed conflict with al qaeda, the taliban and associated forces in response to the 9/11 attacks and subsequent attacks and may use force consistent with the laws of war and its inherent right to self-defense under international law and that the congress has authorized appropriate and necessary uses of force through statute in response. now, this raises several issues what constitutes a valid armed conflict, when are you acting in individual or collective self-defense and when has the state in which the action occurs consented to the use of force on its territory or demonstrated self to be unwilling or unable to suppress the threat? the classic example here being the raid on osama bin laden. in conflict, the conduct of force is governed by well
established rules, distinction between civilians and military,ness at this time proportionality in the use of force, and rules of humanity. so when you hear people talk about carpet bombing, it's illegal. now, i heard recently this candidate mentioned the notion of selective carpet bombing which is a oxymoron if i've ever heard of it. but to go on, under the geneva conventions the four conventions, come article 3 the rule of humanity says there shall be no violence to life and persons including torture, no outrages on personal dignity, no sentences without due process. and the additional protocol one which the u.s. has treated as customary international law amplifies these guarantees and outlaws all forms of violence against those person who are noncombatants. now, it does not matter that al
qaeda has not signed the torture conventions or the geneva conventions. i recall a meeting i had with a senator who said to me, professor, by the way, inside the beltway, professor is not a term of respect. he said professor, the last time i checked al qaeda hasn't signed the torture convention or the geneva convention. i said senator, the last time i checked, the whales hadn't sign the whaling convention either. this is not about contract. it's not about a bilateral agreement. it's about what our minimum standards of humane treatment or as senator mccain put it well, it's not about them and who they are but about us and who we are. and it contains the notion in additional protocol two which the u.s. has respected on the key provisions no acts or threats of violence the primary purpose of which is to spread terror among the civilian
population including such banal threats as making the and glow. now, if you will hear some say we should proceed told waterboarding or a hell of a lot worse than waterboarding. the short answer which you saw in the retraction which came from there candidate's campaign is unfortunately, that's illegal. and if the president has taken an oath to uphold the constitution and laws of the united states, that's probably an impeachable offense because the torture convention says justification may not be justified by a state of war or a threat of war and that all acts of torture wherever they occur must be criminalrized. senator mccain made the policy point, as well. these statements mislead americans about the realities of interrogation. i would urge you to read shane o'mara's sbook why torture doesn't work." he's a professor of brain research impairmental brain
research at the university of dublin. his point is simple. at a cellular neurological level it, does the opposite of what it is intended to do so it is a pointless act or as or well would say, the only point of torture is torture. and then this brings us to the hague. the international court of justice has said that the international covnent on civilian political rights does not cease in times of war. if there has not been a daregation in the palestinian wall case that the court must take account of both international human rights law and international humanitarian law and so we apply a provision by provision approach. there are some human rights provisions which may be impracticable in time of war, for example, elections. but others like the right to be free of torture and cruel treatment are nondare gabl and cannot be relaxed. charlie savage of "the new york
times" in his new book "power wars," we counts a debates in which i was involved. i left behind when i left the state department on my last day as legal advisor a memo which said i do not believe it was legally available for policymakers to claim that the torture convention did not apply outside the united states. and in many 2015, are this administration made explicit the assistant secretary for human lights tom malinowski, the torture ban applies in all places at all times with no exceptions and then my successor as legal visor mccloud echoed the same notion. so that is the lauf interrogation. what about detention? increasingly, as the president made clear in his national archives speech seven years ago, civilian trials are preferred. military commissions must comply with the constitution. transfer of detainees from guantanamo continues. and as of yesterday, they report
that of the 91 left, 17 will soon depart hoping to leave that number at something like 45 by the end of the summer. still with time to go. an executive order on periodic review and now embodied in the national defense authorization national defense authorization act -- cable satellite corp. 2008 captions copyright national cable satellite corp. 2008