Time to Revive the 2004 Bush-Congress Letter to Israel

By Miriam Elman

(Re-published from Providence, April 21, 2016) Shortly after his inauguration, President Barack Obama abandoned a series of pledges that his predecessor had made to Israel. They included the promise that the U.S. would support a number of Israeli positions in future negotiations with the Palestinians, including a) Israel would not be compelled to cede its claims to all of the territory captured from Jordan in the 1967 Six Day War; b) millions of Palestinian Arabs would not be resettled in Israel; and, c) Israel must be recognized as the state of the Jewish people.

“The Bush-Congress letter to Israel was incredibly valuable since it helped Sharon win domestic public approval for his Gaza disengagement plan.”

These commitments were delivered by former President George W. Bush to the late Israeli Prime Minister Ariel Sharon in the form of a two-page letter at a White House press conference on April 14, 2004.  Several months later, Congress would add its support to the letter’s terms by lopsided margins—95-3 in the Senate and 407-9 in the House of Representatives.

A letter from a U.S. President to an Israeli Prime Minister might not seem like a big deal. Yet, it’s what enabled PM Sharon to undertake risks for peace—the removal of every Israeli citizen, settlement, and military base in Gaza, and the removal of four small settlements in the West Bank.

In fact, the Bush-Congress letter to Israel was incredibly valuable since it helped Sharon win domestic public approval for his Gaza disengagement plan. Of course, Sharon may have taken this unprecedented move even in the absence of the White House’s support. But the letter made it an easier sell.

While the letter was viewed by the Arabs as signaling a major break in U.S. policy, the reality is that previous U.S. administrations had also accepted that there would be no return to the 1949 borders because Israel would keep some of the settlements. Basically, the 2004 Bush-Congress letter just “set forth publicly” something that had already been widely acknowledged by the U.S. government: to ensure Israel’s security with defensible borders, the 1967 lines weren’t a useful starting point for negotiations.

Indeed, it was President Obama who shifted the goal posts by refusing to view the Bush-Congress letter to Israel as binding on U.S. policy and by claiming that negotiations should start on the 1967 lines.

President Obama’s cavalier decision to reject the Bush-Congress letter soured relations between the U.S. and its most important ally in the Middle East during the early days of the Obama presidency. From the Israeli perspective, it was a betrayal …

To read the full article, click here.

Obama: The Conflict Resolution President?

By Louis Kriesberg

(Re-published from Foreign Policy in Focus, April 18, 2016) In the eighth year of Barack Obama’s presidency the struggle over assessing the correctness of his foreign policy is understandably under way. Unfortunately, too often the struggle is waged in extreme, ill-founded terms. Many Republican leaders and pundits accuse Obama of being naïve, weak, indecisive, and even at times of pursuing non-American interests and goals. Obama himself, in his unflappable manner, ignores the wildest charges and tries to explain the rationale for the foreign policy choices that he makes. His team defends and explains the grounds for choosing the least bad option in difficult circumstances. They agree on the importance of not doing “stupid stuff.”

“Obama has tried to minimize US resort to violence, while narrowing the targets and drawing upon multilateral support.”

It is, however, worthwhile to seek an understanding of the foreign policy doctrine or style that Obama generally has used. Some observers, like Andrew Bacevich, think he remains essentially within the Washington foreign policy consensus in dealing with the Middle East. Yet Obama characterizes himself differently, as reported by Jeffrey Goldberg. In “The Obama Doctrine,” published in The Atlantic, Obama has expressed some distance from that consensus, which he views as overly militarized. And yet he wants to characterize himself as a realist. That is probably a politically useful guise.

In fact, Obama has been quite eclectic and pragmatic in his policy making. More significantly, he has often drawn from the evolving conflict resolution approaches. More specifically, his conduct often has been congruent with a constructive conflict approach that synthesizes the research and experience of work in the conflict resolution and peace studies fields.

Obama has tried to minimize US resort to violence, while narrowing the targets and drawing upon multilateral support. In addition, he has used diplomacy to restructure conflicts and has taken into account how adversaries view a conflict so as to maximize the effectiveness of non-coercive inducements. His administration has recognized that diplomacy takes many formal and informal channels at multiple levels. Each effective engagement helps build a basis for future engagements in future conflicts. These understandings are central to a constructive conflict approach, derived from empirically grounded knowledge about ways to reduce destructive conflicts. Indeed, Obama has had notable foreign policy successes by acting in accord with a constructive conflict approach. Furthermore, some seeming failures might well have been averted, not by more militancy, but by more prompt and consistent use of constructive conflict strategies …

To read the whole blog entry, click here.

Podcast: Syrian Accountability Project & “Looking Through the Window Darkly”

Hello and welcome to the Syracuse University College of Law podcast, where we discuss pressing legal topics with our distinguished faculty and alumni. I am David Crane professor of practice at the College of Law and project leader of the Syrian Accountability Project at the College of Law.

Today, we are going to discuss a recent white paper released by the Syrian Accountability Project that details rape in Syria during 2011-2015. The report, Looking Through the Window Darkly, is the first document of its kind to not only highlight and analyze reported accounts of this horrific gender crime but also to apply international legal standards with an eye toward future transitional justice for the victims.

I’d like to introduce my guests: Peter Levrant, executive director of the Syrian Accountability Project and a third year law student at the College of Law and Molly White, chief registrar for the Syrian Accountability Project and also a third year student at the College of Law. Hello and welcome Peter and Molly …

Apple Encryption Debate: What about iCloud?

By Christopher Folk

(Re-published from Cyberlawblog, March 30, 2016) Walt Mossberg’s article about the Apple encryption debate (in The Verge) highlights the fact that Apple has the ability to decrypt the bulk of data that is uploaded via iCloud backups. Furthermore, according to Mossberg, Apple has unencrypted and provided iCloud backup data to the FBI and other law enforcement agencies on numerous occasions—once a valid warrant has been issued. Mossberg indicates that Apple views iCloud data differently from the iPhone for a variety of reasons:

“Sorry to disappoint, but for most of us, Big Brother is more akin to Rhett Butler than George Orwell. When it comes to our information, the government says, ‘Frankly, my dear, I don’t give a damn.'”
  • Apple claims that the security policies for the phone relate to a physical object that can, therefore, be lost or misappropriated and consequently the physical device requires heightened security protocols.
  • Apple indicates that the iCloud requires strong security; however, Apple retains the ability to access and restore backups to user devices since this is a feature that users desire. Additionally, Apple states that sensitive data such as network passwords and Apple keychains (that hold passwords) is not decrypted from iCloud backups.
  • Apple’s position is similar to other providers—such as Google (Gmail and Google Drive, Docs, and Calendar) and Dropbox—and these cloud services indicate that they also comply with valid, lawful orders for decrypting and providing data to law enforcement.

Mossberg raises some interesting questions concerning exactly what Apple was doing when it launched its media blitz decrying the government’s efforts to compel Apple to bypass some iOS security features that would allow the FBI to launch a brute-force attack on an iPhone 5c.  If Apple’s primary motivations were about data privacy and protection for its customers, then why does it retain the ability to decrypt iPhone backups in the cloud? Did Apple choose this battle merely to highlight what it deems to be a larger privacy issue, or does Apple truly believe that data on an iPhone is more sensitive than data from an iPhone backed up to iCloud?

Before proceeding, I should say that on a personal level—irrespective of the position I may have extolled in previous blog posts—I think that data privacy and encryption, in particular, are valuable tools that should be available to citizens within the digital realm. Specifically, I am not in favor of encryption backdoors, master keys, or “clipper-style” chips that would allow government intrusion into electronic communications. I use encryption at the volume and file-level, and I believe that just because the government has a search warrant giving them the right to access information, it doesn’t mean that they necessarily have (or should have) the ability to access encrypted information.

That being said, it seems a bit disingenuous to argue that modifying the iOS code to remove the timing delay between successive passcode unlock attempts, and to bypass the auto-delete functionality so the government could launch a brute-force attack against an iPhone, somehow places user data in greater jeopardy than putting a bow around a decrypted iCloud backup and delivering it to the government. Frankly, it seems shocking that more users aren’t distraught by Apple’s past and, I assume, future compliance with requests for decryption of iCloud backups.

A number of arguments have been raised with respect to why these Apple vs. FBI issues are so important and far-reaching.  Here are some points that appeared in recent comments to a previous post:

  1. There may be valid reasons for the government to request access to an iPhone, but how is that threshold discerned?
  2. The actual number of phones that could be affected number in the millions with presumably any model 5c or earlier able to be brute-force attacked had Apple developed a new iOS code.
  3. Initial compliance will lead to later compliance, and companies such as Apple will be compelled to comply, especially in countries such as China.
  4. Once Apple writes the software the government could reverse-engineer it, and they will be able to use it to unlock other phones.
  5. The FBI and US Department of Justice (DOJ) have both suffered cyber breaches, so if they have the iOS software it is likely to attract hackers, and they will effect a breach and abscond with the iOS code.

With respect to the first point, an order to compel is—and will continue to be—a matter for the judiciary. Once an application has been made and issued by the court, it becomes a lawful mandate and, yes, Apple or any other entity is required to comply.  There is no distinction between encrypted, unencrypted data, levels of encryption, bit shifting, or steganography—this kind of writ is simply a lawful order that gives law enforcement the ability to get X from Y.  Additionally, many search warrants have ex ante restrictions that limit law enforcement’s processes, procedures, and/or timelines within which they can execute a search. Thus, there are already mechanisms in place to ensure that law enforcement has valid reasons to request access to data.

The second point, while valid, still overlooks the fact that the iOS changes being touted would be purpose-built to load on this specific iPhone, not just the specific model, but, in fact, the specific device associated with a unique device identifier.

The third point is little more than a slippery slope argument. The mere fact that a company is forced to comply with a lawful order does not render any future arguments against a DOJ request to be moot. These inquiries are very fact-specific and as such one would anticipate that courts are going to make the requisite searching inquiries before compelling any action under the All Writs Act.  Additionally, under the All Writs Act, the following conditions must be examined [1]:

  • Is Apple either a party to the underlying case, or if a non-party, are they in a position to either thwart or effect the implementation of the court order? Here, Apple does not own the phone; however, it did manufacture the device.  Furthermore, Apple owns the proprietary design elements to include hardware and software and is, therefore, a party.  Even if one were to argue that Apple’s non-possessory interest in the specific device was at issue, the fact that Apple does own the iOS running on the device, and it is a combination of the iOS and the underlying hardware that is preventing the DOJ’s brute-force attack without modifications by Apple, then they are a non-party to whom it would be appropriate to direct the writ.
  • Does Apple have a substantial interest in not assisting the government? The stated interest appears to be Apple’s strong beliefs in privacy rights and, at face value, that does seem to be compelling. However, when taken in the context of Apple’s position on iCloud backup files, which it readily decrypts when provided lawful mandates, the argument weakens. The fact that Apple views device security differently than the security of files backed up to the iCloud lends credence to the theory that Apple’s desire to “seem” focused on security and privacy really isn’t the case in their day-to-day operations. The fact that Apple does decrypt customer data indicates that the idea of doing so is not patently offensive, nor does it violate the company’s actual beliefs or policies—irrespective of which beliefs Apple chooses to assert with the media.
  • Is the order burdensome? If this code change requires two weeks of coding by a team of developers, then certainly there is the opportunity cost associated with this. This team of developers could have spent two weeks working on any number of issues or building the greatest iOS the world has ever seen. However, since the government is willing to compensate for the time devoted to this endeavor, one can also argue that while the time and potential products in the software development life cycle (SDLC) may be impacted, this is a burden which can be shifted through the allocation of government funds to offset the time and expense. In reality, this is probably Apple’s strongest point, yet it also seems to be the one they are putting the least amount of focus on. If you think of the SDLC in terms of the butterfly effect, where the flapping of the butterfly wings at Time N causes the breeze that causes the ripple that cascades to Time N+n into a hurricane, then you get a sense of the argument Apple might make. If you assume that iOS runs on a six-month SDLC, and it takes two weeks of core development resources to assist the government, then the entire lifecycle shifts. Now software is out of sync with hardware, and the new release slated to be rolled out in two more development cycles suddenly gets pushed back. This could extend time-to-market, allowing someone else to gain a competitive advantage, and suddenly you can demonstrate the enormity of the potential burden of shifting development resources to an outside project while in the midst of the SDLC.
  • Is there a way for the government to obtain what it needs without Apple’s assistance? Well, up until Sunday this answer seemed pretty straightforward.  According to Apple, their iPhone was secure, and according to the DOJ, they could not bypass the lock code security.  Of course, once an outside party was able to bypass this and unlock the iPhone, this task was not dependent upon Apple’s acquiescence.

The fourth point is somewhat counterintuitive.  Here it is being asserted that once Apple modifies the iOS to change the timeout value and bypass the auto delete, then when the government gets the device back, they can reverse-engineer the iOS and use it to brute-force other iPhones. The problem is, if the government could reverse-engineer this “special” iOS, then why can’t they reverse-engineer the proposed iOS?  Does changing a timeout value and circumventing a block of code that performs the auto delete somehow make the code easier to reverse engineer?  Apple may be overstating the resources it would take to build this new code, but either way, if the government can reverse engineer any iOS then all bets are off and they can hire some hackers to make some modifications and let it run amok to access iPhones everywhere (with valid court orders, of course!)  Unless there is some reason that the altered iOS is going to be inherently insecure, or if the update will only work with raw source code, the propensity of the government to reverse engineer the new code is no greater than their ability to do the same with the current iOS versions.

Finally, the fifth point—that the FBI and DOJ could be a target for hackers once they have this new iOS—is also rebuttable.  As I write this, presumably iOS is sitting on servers in Cupertino, if it really is that attractive, why isn’t Apple a target for this sole reason?  And while I won’t argue that the government has a handle on cybersecurity, in all fairness can we assume that the FBI and the DOJ already have some sensitive data on their servers that hackers the world over would love to get access to, so aren’t they already targets as well?  Some of this issue comes back to Apple’s assertion that iCloud and iPhones aren’t really the same. Here, if either the FBI—or any other three-letter agency—was able to get this iOS, reverse engineer it, and have it waiting and ready for use, they would still need the physical phone to make this work.  So too would any hacker because having the ability to brute-force a phone to get it to unlock without erasing data is somewhat predicated on actually having a physical phone to perform this action on. 

Is it scary that the government could access our phone data and our encrypted communications? Yes, of course, because that raises a number of concerns with respect to privacy as well as potential freedom of speech issues.  However, if you consider the technological movement towards an Internet of Things, and the sheer volume of hackable devices and data, is government intrusion into our phones really a looming concern?  Perhaps, this concern over phone privacy is a Millennial Generation issue in which people think that their pet pictures or their social media status updates are somehow of interest to a federal government that wants nothing more to break encrypted communications to find out how many cats they say they have versus how many they actually have!

However, in the real world—and I have spent some time with Big Data firms—one realizes that trying to amass myriad bits of information and then taking the time to decrypt it and then sort through it (even if automated, based on keyword) is an enormous undertaking. Mass decryption would be both technically infeasible and an inordinate drain on government resources.  Sorry to disappoint, but for most of us, Big Brother is more akin to Rhett Butler than George Orwell. When it comes to our information, the government says, “Frankly, my dear, I don’t give a damn.”

———

[1] United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977).

http://blog.cybersecuritylaw.us/2016/03/30/apple-encryption-debate-what-about-icloud/

Christopher W. Folk is a second year student at SU College of Law, a former US Marine, a software engineer, and Town Justice for the Town of Waterloo, NY.

ISIS & Genocide: State Dept. Has Made the Right Call, But It Shouldn’t Have Taken This Long

By Miriam Elman

(Re-published from Legal Insurrection (“State Dept: ISIS Committing Genocide”), March 17, 2016) At a 9:00 a.m. press conference [on March 17, 2016], Secretary of State John Kerry announced that the Islamic State’s actions perpetrated against ethnic and religious minorities, including Christians, are “genocidal” and constitute crimes against humanity.

“In his statement this morning, Kerry makes a point of noting that classifying ‘Daesh’s’ actions as amounting to genocide doesn’t place any ‘legal obligation’ on the United States to act.”

In the brief (10 minute) statement, Kerry refers throughout to the Islamic State (ISIS) as Daesh, its Arabic acronym. He details many of the “despicable” horrors that ISIS has perpetrated against the civilians under its control, claiming that “Daesh is genocidal by self-acclimation, by ideology and by practice”. In labeling ISIS’s motivations as genocidal and its actions as constituting genocide, the State Department met a congressionally-mandated March 17 deadline for making this classification. This past Monday, in a rare example of bipartisanship, the U.S. House of Representatives unanimously (393 to 0) passed a non-binding resolution condemning the Islamic State’s atrocities as genocide.

Kerry’s announcement comes as a surprise.

In recent weeks the Obama administration had insisted that further evaluation was necessary. And at a press conference as late as yesterday, Mark Toner, a State Department spokesperson, stated that Kerry was not yet ready to make the determination of whether ISIS’s actions had met the legal standard of genocide, and would need more time to review the available evidence and ponder the “legal ramifications” of this designation.

Toner confirmed that the State Department would not be meeting the deadline set by Congress, and also said that waiting to make the determination would be “worth it”. So everyone following this issue (see for example here and here) was pretty much certain that Kerry would let the deadline lapse. As for me, I was hedging my bets. It wouldn’t be the first flip-flop of this administration. So I wrote in a post yesterday that: “While some were hopeful that Kerry would concur with the House, it’s looking increasingly likely that he’ll be dragging out the official determination, and will let the deadline pass tomorrow without any action.”

Kerry—unexpectedly—has done the right thing, although it should never have taken this long.

As I noted in yesterday’s post, the designation can’t come too soon for the Middle East’s suffering Christians. Officially classifying the Islamic State’s atrocities as an unfolding genocide would certainly help to bring about a global response to this crisis. Speaking up for the Middle East’s beleaguered and brutalized minority population would invoke a ‘responsibility to protect’ and, as has been noted, “there are a series of actions that [would] immediately come into play to stop [the genocide].” But in his statement this morning, Kerry makes a point of noting that classifying “Daesh’s” actions as amounting to genocide doesn’t place any “legal obligation” on the United States to act …

To read the full blog, click here.

Islamic Contributions to International Humanitarian Law

By Corri Zoli

(Re-published from AJIL Unbound, March 17, 2016) This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms.[1]  This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL)[2] more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.[3]  Yet too rarely have scholars probed deeply into the history of third-world[4] participation and leadership in developing international law norms, particularly at the state level or from the semi-periphery.[5]  In fact, non-Western leaders have played a role in the pre-World War II period of lawmaking and have used existing cultural and legal traditions to do so. Accounting for this history makes for a more accurate, inclusive, and culturally-grounded approach to the law made by and for states. More pointedly, it reaffirms that cornerstone premise of sovereignty—in all of its diverse national expressions—an idea challenged today by global political-economic forces.[6]

“[T]oo rarely have scholars probed deeply into the history of third-world participation and leadership in developing international law norms.”

In comparative international law, legal history, and Islamic studies, it is fairly well established that Islamic norms historically governing use of force are broadly compatible with principles of the international law of war. BeyondQuranic verses, the classic example is Abu Bakr’s instructions to Arab armies invading Syria on the eve of the Riddawars (632/3 CE) in which the prophet Muhammad’s first successor sought to defeat and reintegrate rebellious Arab tribes into the newly-formed Islamic empire or caliphate.[7]  In laying out some of the first humanitarian norms—prohibitions against “treachery,” pillage, the killing of children, women, the elderly—Abu Bakr helped legitimize a young politico-religious community in its own early relations of rule, and defined lasting standards for conduct in warfare.[8]  Many scholars see an early Islamic footprint in the very idea of international law, its emphasis on treaties, and IHL.[9]

If the compatibility thesis is well-known,[10] less explored are Islamic contributions to the shared history of public international law, modern Muslim leadership in IHL,[11] and the too-rarely-treated role of Muslim states in the early Geneva and Hague diplomatic conferences. In fact, when we think of the 1949 Geneva conference, convened to update existing Hague and Geneva law, rarely do attendees from Afghanistan, Egypt, Iran, Lebanon, Pakistan, Syria, Turkey, and Albania spring to mind. Not only did delegates from these Muslim-majority states take part in deliberations, they signed the resulting agreements known as the revised Geneva Conventions of Aug. 12, 1949, including the unprecedented Fourth Convention covering civilians in war.[12]

It is worth noticing several features of this contribution. Firstly, and empirically, one sees an increase over time (see below) in Muslim state conference participation, a trend that continues until the 1960s, after which many states—partly through the Organization of Islamic Cooperation—begin to develop culturally-specific interpretations of international law with complex motives and results.

Secondly, an emphasis is placed on “humanity” as a collective project by Conference participants in keeping with the IHL framework. Less noted, though important—in light of TWAIL critiques of empire—is how often such humanitarian priorities emerge from an expressly imperial framework and its philosophy of largesse, notably by Persian and Turkish representatives (both coming from empires).

Two examples bundle these points: Note the following declaration by General Mirza Khan, the first delegate of Persia to the 1899 Hague Peace Conference:

The Russian Government having done Persia the honor of inviting it . . . and His Imperial Majesty the Shah, my august sovereign, having deigned to choose me to undertake this honorable mission. . . . All these marks of interest impose upon me the duty of adding also on my side . . . support of the great cause which is that of all humanity and with which we have here to deal.[13]

To refute critics who detect arrogance in the Emperor of Russia’s initiative, Khan relays this story:

“Permit me, gentlemen, to cite to you a proof of [Emperor Nicholas II’s] . . . elevated sentiments. In the first year after my appointment . . . [for] Persia at the Russian Court, I was accompanying on my horse the Emperor who was going from the Winter Palace to the Field of Mars . . . to be crowned. As I was somewhat ill that day, I fainted and slipped from my horse. The Emperor, seeing this, stopped his brilliant cortege and did not continue . . . until I had been put in a carriage. . . . Several times [he] sent his aides-de-camp to learn of my condition. Our celebrated poet Saadi has . . . describe[ed] pride: ‘Its glance is like that of a king who causes his army to pass before him.’ The young Emperor, an autocrat of 26 years of age, who, for the first time, after his accession to the throne, was passing in review a brilliant army of 30,000 men, did not, in that moment of legitimate pride, forget an accident . . . to a stranger. . . . He who acts thus can not be selfish, and . . . the initiative that he has taken for this Conference, can only proceed from a . . . noble heart. Gentlemen, let us fulfil our duty before the civilized world, and not discourage Their Majesties.” [14][15]

To read the full article, click here


[1] See James Cockayne, Islam and International Humanitarian Law, 84 Int’l Rev. Red Cross 597 (2002); Mohamed Badar, Ius in Bello under Islamic International Law, 13 Int’l Crim L. Rev. 593 (2013); Ahmed Mohsen Al-Dawoody, The Islamic Law of War (2011).

[2] James Thuo Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography, 3 Trade, L. & Dev. 26 (2011); Karin Mickelson, Taking Stock of TWAIL Histories, 10 Int’l Community L. Rev. 355 (2008).

[3] Mutua writes: “The regime of international law is illegitimate. It is a predatory system that legitimizes, reproduces and sustains the plunder and subordination of the Third World by the West . . . Historically, the Third World has generally viewed international law as a regime and discourse of domination and subordination, not resistance and liberation. This broad dialectic of opposition to international law is defined and referred to here as Third World Approaches to International Law (TWAIL).” See Makau Mutua, What Is TWAIL?, 94 Proc. Ann. Mtg. ASIL 31 (2000); Madhav Khosla, TWAIL Discourse: The Emergence of a New Phase, 9 Int’l Community L. Rev. 291 (2007) (arguing for three phases of concerns: colonialist, hegemonic uses of international law by powerful nations; international legal institutions embedded in North-South politics of globalization; and extreme post-9/11 violations of norms).

[4] For social scientific debate of “Third World,” see Carl E. Pletsch, The Three Worlds, or the Division of Social Scientific Labor, circa 1950–1975, 23 Comp. Stud. Soc. & Hist. 565 (1981); Vicky Randall, Using and Abusing the Concept of the Third World, 25 Third World Q. 41 (2004).

[5] But see, Muhammad Munir, Islamic International Law, 20 Hamdard Islamicus 37 (2012); Antony Anghie,Imperialism, Sovereignty & the Making of International Law (2005); Surya Prakash Sinya, Legal Polycentricity & International Law (1996); Arnulf Becker Lorca, Mestizo International Law (2014).

[6] See UN Charter art. 2(1), “The Organization is based on the principle of the sovereign equality of all its Members.”

[7] See Fred M. Donner, Muhammad & the Believers (2010); and Fred M. Donner, Early Islamic Conquests (1986). For Quranic verses echoing related norms, see Yusuf Ali, The Holy Qur’an 47.4; 2.205; 48.25 (1934)—but see id. at 59.5 and 47.4.

[8] Abu Bakr’s instructions include: “Oh army, stop and I will order you [to do] ten things; learn them from me by heart. You shall not engage in treachery; you shall not act unfaithfully; you shall not engage in deception; you shall not indulge in mutilation; you shall kill neither a young child nor an old man nor a woman; you shall not fell palm trees.”See The History of al-Tabari Vol.10: The Conquest of Arabia (Fred M. Donner trans., 1983); Rudolph Peters, Islam & Colonialism 23 (1979) (noting other schools using the Prophet and Quran i.e. 59.5 permitted these acts, justified them, and refuted Abu Bakr’s prohibitions, as the “deeds of the companions can never abrogate deeds of the Prophet”).

[9] For non-Western contributions in Africa studies, see Emmanuel G. Bello, Shared Legal Concepts between African Customary Norms & International Conventions on Humanitarian Law, 23 Mil. L. & L. War Rev. 285 (1984). But see, Modirzadeh on incompatibilities in Islam and IHRL, Naz K. Modirzadeh Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts & Minds, 19 Harv. Hum. Rts. J. 191 (2006).

[10] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (2005). See Cockayne, supra note 1,;Al-Dawoody, supra note 1.

[11] See Emilia Justyna Powell, Islamic Law States and Peaceful Resolution of Territorial Disputes, 69 Int’l Org. 777 (2015).

[12] For Conference sources cited, see James Brown Scott, The Proceedings of the Hague Peace Conferences, 1899(1920) [hereinafter Scott 1920]; A. Pearce Higgins, The Hague Peace Conferences Concerning the Laws & Usages of War (1909); James Brown Scott, The Geneva Convention of 1906 for the Amelioration of the Condition of the Wounded in Armies in the. Field (1916) [hereinafter Scott 1916]; 1-3 Final Record of the Diplomatic Conference, Geneva, Apr. 1-12 Aug. 1949 (1968).

[13] Scott 1920, supra note 12, at 305 (Hague, June 23, 1899).

[14] Id. at 306 (Hague, Jun. 23).

[15] The work of Saadi Shirazi (d. 1291) adorns the UN entrance. See Saadi Shirazi, Rose Garden, The Manners of Kings (1258): “All human beings are members of one frame; Since all, at first, from the same essence came. When time afflicts a limb with pain; The other limbs at rest cannot remain. If thou feel not for other’s misery, A human being is no name for thee.”

What is “Reasonable” in Terms of Client Data Protection?

By Christopher Folk

(Re-published from Crossroads Blog, March 15, 2016)  In spite of some recent high-level data breaches, a recent article that appeared in Legal Tech News seems to indicate that law firms and lawyers are still not doing nearly enough in terms of client data protection. This article indicates that the FBI first warned law firms back in 2009—and then repeated the warning in 2013—stating in no uncertain terms that “[w]e have hundreds of law firms that we see increasingly being targeted by hackers.”

As if the FBI warnings weren’t enough, the American Bar Association (ABA) decided to add some comments to its Model Rules of Professional Conduct to advise lawyers what their ethical duties are with respect to cybersecurity.  Specifically, ABA model rules 1.1, 1.6, and 5.3 address technology and the lawyer’s duty therein (specifically, you can find this language within the comments to the aforementioned rules). The article, however, indicates that law firms are still not doing enough, and as a result they may be exposing their client’s data and exposing themselves to legal liability.  Consequently, Peter J. Toren suggests in his Legal Tech News article that law firms address three specific areas: (1) email security; (2) personal devices; and (3) unsecure Wi-Fi.

Commentary

If Toren’s assertion that law firms are not doing enough to take reasonable steps to safeguard client data, then the three items that he lists amount to no more than a drop in the proverbial bucket, and they would in my opinion fall far short of the standard of reasonableness articulated within the official comments to ABA model rules 1.1, 1.6, and 5.3, as well as ethics opinions that have been drafted by various state bars.

I would argue that first and foremost a law firm needs to conduct an assessment of the threats against it—and, more importantly, its vulnerabilities—in order to understand the current state of the firm’s cybersecurity.  Once that audit is complete, a firm will be better able to articulate a plan for identifying the most pressing vulnerabilities and a process by which the vulnerabilities can be mitigated.

If one simply looks at cybersecurity as a border security exercise—in which one just has to “build a wall” of some kind—then one will fail to grasp the fact that the primary concern must be in securing data and preventing unauthorized data access, data breaches, data modification, and data exfiltration.  To that end, looking at email security and implementing password aging and complexity guidelines, along with multi-factor authentication, is probably going to end up on the list of cybersecurity tasks. But these policies should be a step a firm gets to, rather than where it actually starts the process. Similarly, with respect to personal devices and network access, a holistic approach in which a firm treats data as the “crown jewels” and then creates processes and procedures to safeguard these jewels is going to result in a more comprehensive and effective cybersecurity strategy than simply changing the firm’s WiFi password (a simple wall) or restricting the use of personal devices.

I have made these points in mixed company before, and the rhetoric I often hear is that the ultimate step is to get to encryption, but in the interim we are going to do X and Y.  However, in the context of a law firm, once you understand that data encryption is a must-have, then I believe failing to protect that data falls below the threshold of “reasonableness.”  There are a number of services and options that law firms (or even the sole practitioner) can employ; however, my view is that if a firm has clear-text, unencrypted client data sitting on workstations, in servers, in the cloud, or anywhere within its purview, then any inability to encrypt that data using even a rudimentary bit-shifting algorithm is unethical.

So come on law firms, your clients are spending significant time and resources securing their data. When, either as a result of litigation or perhaps in preparation for such, their data ends up at your law firm, and if your cybersecurity efforts are weak or non-existent, your clients are going to hold your firm responsible in the event of a breach or unauthorized access.  Law firms need to stop looking at cybersecurity as a non-billable cost center and realize that a mistake in this arena could spell disaster for the firm (for instance, just take a look at the effect a data breach had on Puckett & Faraj).

http://blog.cybersecuritylaw.us/2016/03/15/safeguarding-clients-information/

Christopher W. Folk is a second year student at SU College of Law, a former US Marine, a software engineer, and Town Justice for the Town of Waterloo, NY.

The Origins of American Counterterrorism

By Michael Newell

While much attention has been paid to the American state’s reaction to the Sept. 11, 2001, attacks, the origins of institutions and ideas deployed in the War on Terror in historical conceptions of terrorism and political violence have been overlooked.

In “The Origins of American Counterterrorism,” I analyze these historical origins through the American state’s response to Ku Klux Klan (KKK), Irish-American Fenian, and anarchist political violence from the end of the Civil War in 1865 until the 1920 bombing of Wall Street, the last alleged significant act of anarchist violence. I argue that this history demonstrates a process of threat construction and changes in institutions, laws, and policies.

“The history of American counterterrorism not only holds a mirror up to events today, it also demonstrates the profound, long-term effects that threat construction and inflation can have when they become institutionalized.”

These changes came about through a mixture of complex social and political factors, but the perception of threat significantly influenced their content and the populations they were directed against. This was particularly the case in the state’s response to European anarchists, in which the response could be described as against an “inflated” perception of threat, while the response to the KKK and Irish-American Fenians was more constrained. In the paper, I argue that this difference is the result of the discursive association of threat with generalized social and political categories, including identity (race, class, gender, nationality, religion, etc.) and ideology (anarchist, communist, socialist, conservative, etc.)

Throughout its history, American counterterrorism has been based on the logic of excluding allegedly threatening populations, and this logic has tended to follow the lines of social and political identity. As such, ideas about American identity and legitimate engagement in American social and political life have structured conceptions of social deviance and illegitimate violence.

For example, in the late 1800s anarchist violence was often described as an import from Europe, while “native-born white Americans who commit acts of political violence [were] usually treated as misguided individuals.” The consequence of the perceived foreignness of terrorists can be seen in the fates of Emma Goldman in the early 1900s, an anarchist and a US citizen, and Anwar al-Awlaki in the 2000s, an alleged leader of al Qaeda and also a US citizen. While both Goldman and al-Awlaki were US citizens, their designation as “terrorists” placed them outside of the rights and protections of citizenship. Consequently, Goldman was deported to Russia after living in the US for 35 years, and al-Awlaki was killed by a drone strike.

The history of American counterterrorism not only holds a mirror up to events today, it also demonstrates the profound, long-term effects that threat construction and inflation can have when they become institutionalized. In its reaction to these groups’ use of political violence from the mid-19th century through the 1920s, America’s federal security institutions developed from non-existence to national and international influence. By the end of World War I, the US Secret Service, Bureau of Immigration, and Bureau of Investigation, among other agencies, were created and expanded to national and international influence. While the explanation for the creation of these institutions includes a number of factors—such as the rising bureaucratization of the federal government—political violence and perceptions of insecurity played a central role.

The broader dissertation project of which this paper is a small part seeks to understand the processes of threat construction, threat inflation, and security responses through a history of American experiences with terrorism and counterterrorism. In this paper, I illustrate my approach through the law, policy, and institutional changes enacted after the assassination of President William McKinley in 1901—ostensibly by a European anarchist—including immigration restrictions on those espousing anarchist philosophies.

As the assassin, Leon Czolgosz, had only tenuous connections to the anarchists and was a US citizen born to Polish immigrants, I argue that the particular response to this assassination (including substantial changes to immigration laws, presidential protection, and the role of the Secret Service) and its particular focus (on immigrants, despite Czolgosz’s citizenship) illustrate the impact that ideas have on deciding who or what is a source of insecurity.

Likewise, this case provides an example of identity-based threat inflation, as violence by a few individuals with ties to anarchism strengthened policies against anarchists, immigrants, socialists, communists, labor, and feminists. This identity-based threat inflation, once institutionalized, affected social and political life after the threat of anarchist terrorism waned.

Michael Newell, is a Ph.D. Student, Department of Political Science, Maxwell School of Citizenship and Public Affairs, Syracuse University 

Five Years on, We Must Focus on the Victims of Syria’s Atrocities

By David Crane

(The World Post, March 14, 2016) March 15, 2016 marks the fifth anniversary of the Syrian civil war, a battle that began in 2011 with scattered anti-government demonstrations and has since become a full-blown geopolitical and humanitarian crisis. So far, the conflict has mired regional and world powers in what some experts describe as a proxy war, taken more than 250,000 lives, left 13.5 million people in need of humanitarian assistance, internally displaced more than 6.5 million, forced 4.8 million into refugee life and seen the terrorist group the Islamic State rise from the ashes of Al Qaeda in Iraq to become a self-proclaimed “caliphate” that controls parts of the country.

“The people of Syria must not feel that they are alone in their suffering, and it is incumbent on those who value the rule of law to stand up and pledge that some day justice will be done.”
Since the start of the crisis, numerous crimes against humanity and war crimes have been documented, including the use of nerve agents, chlorine and other toxic chemicals; indiscriminate weapons, such as barrel bombs; torture and execution; siege and the denial of assistance; and sexual violence and sex slavery. Currently, the only signs of peace are a fragile truce and fractious, stuttering peace talks that started up again on March 14. These talks will focus on stopping the violence, organizing a monitored peace and transitioning to a new government. There also will be negotiation for a possible political “out” for President Bashar al-Assad. What is not on the table is a transitional justice mechanism for the conflict’s innocent victims.

While peace and post-conflict efforts are in their infant stages, the international community must begin thinking about redress for Syrian civilians when the fighting ends. The people of Syria must not feel that they are alone in their suffering, and it is incumbent on those who value the rule of law to stand up and pledge that some day justice will be done. After all, noncombatants in this conflict have endured some of the most horrific atrocities the civilized world has ever witnessed.

In international law, crimes against humanity and war crimes, such as those perpetrated upon innocent Syrian people, are covered under the 1998 Rome Statute of the International Criminal Court. However, Syria is not a signatory to the Rome Statute, so the ICC has no direct jurisdiction over the country, and efforts so far by the U.N. Security Council to adopt a resolution to refer the situation to the ICC have been opposed by permanent members Russia and China.

Nevertheless, justice for Syrian victims and their families can be attained, especially if the international community reaches out to the Syrian people to understand how they view justice and what mechanism — beyond the ICC — could work for them.

For instance, there are four possible transitional justice mechanisms for Syria that could be organized by the U.N. outside the Security Council: a fully domestic Syrian court; an internationalized domestic court; a regional special court; or an international hybrid special court, similar to the Special Court for Sierra Leone.

The Special Court for Sierra Leone was created by the U.N. for the people of Sierra Leone in 2002 after that country’s civil war. SCSL — for which I was a chief prosecutor from 2002 to 2005, indicting former President Charles Taylor, who was convicted in 2012 — used both local and international justice mechanisms. Importantly, the special court reached out to ordinary Sierra Leoneans with town hall meetings that explained the nature and purpose of the court and why it would use representative crimes in order to seek transitional justice. At the same time, these meetings enabled ordinary people to share their stories in an unofficial form of “truth and reconciliation.”

In preparation for whatever transitional justice mechanism the Syrian people choose for themselves — and working under the maxim that “justice delayed is justice denied” — the Syrian Accountability Project, a student-run project at Syracuse University College of Law, where I now teach, has been carefully documenting atrocities that have occurred in Syria …

To read the full article, click here.

Molly E. White, juris doctor candidate (2016), Syracuse University College of Law, and chief registrar, Syrian Accountability Project, contributed to this article.

The Legal Case for Israel’s “Settlements”

By Miriam Elman

(Re-published from Legal Insurrection, March 10, 2016) Most people around the world firmly hold to the view that Israel’s residential housing communities built in Judea and Samaria/the West Bank are “illegal”. For years, this fictitious claim has fed a wild campaign of incitement and ‘lawfare’ against Israel, based on the myth that Jews have no legal right to live or make their homes on Palestinian-claimed lands in the West Bank. But the truth is that Israel isn’t an unlawful occupying power—certainly not according to any binding international laws.

Now, Northwestern University Professor of Law Eugene Kontorovich, a leading expert in the fields of constitutional law, international law, and the intersection of law and economics, is on a speaking tour of universities and colleges to explain why. Below I summarize the legal case for Israel’s West Bank settlements according to Kontorovich.

Kontorovich is a full professor at one of the nation’s most prestigious universities and schools of law. He regularly writes an opinion column for the Washington Post’s The Volokh Conspiracywhere he addresses how the BDS-related measures arrayed against Israel can run afoul of the law (see for example here) and has recently criticized the Obama administration’s stance on anti-BDS congressional legislation (see here and here). As we highlighted in a post this past summer, he testified before the House against the argument that economic boycotts of Israel are justified or required by international law, and on the role that Congress can play in opposing BDS in ways consistent with U.S. law and policy.

In a post back in 2013 we also featured one of Kontorovich’s lectures on the topic of Israel’s occupation. In it, he claims that presenting Jewish settlement in the West Bank territory (ancient Judea and Samaria) as illegal or ‘colonial’ ignores both the historical complexities of the issue and the legal circumstances. His current presentation updates the arguments he presented then, bolstering them with new comparative research on “other countries’ settlements” and how the international community has reacted to these occupations …

… Here’s the gist of Kontorovich’s talk, which also generated good feedback at the Maxwell School during the Q&A:

International law derives from treaties and custom, not United Nations General Assembly resolutions which are non-binding and thus don’t oblige any action.

Kontorovich began his lecture by noting that in July 1922 it was the League of Nations that established the Mandate for Palestine, deemed as “reconstituting” a “national home” for the “Jewish people”. The word ‘settlement’ first appears in Article 6 of the Mandate: “close settlement by Jews on the land” was to be allowed and even encouraged. And it’s the League of Nations’ Mandatory borders that are binding.

When new countries are established, the most recent administrative border is what counts.

Kontorovich argues that while the League of Nations’ mandates have been contested by states that have sometimes refused to be bound by them (for example, by Iraq in its claim against Kuwait), these objections have no basis in international law. In 1948 the borders of Israel were supposed to be those of Mandatory Britain. The Green Line, or 1949 armistice lines, which are neither a political nor a territorial boundary and have no legal force under international law, didn’t correspond to any prior administrative border. So Kontorovich says that once Great Britain left, the mandate over Palestine—which was explicitly for the purpose of re-establishing a Jewish national home—just expired. The area became essentially a territory without a sovereign.

The fact that Jewish civilians live today in the West Bank isn’t an international crime.

Kontorovich explains that the Fourth Geneva Convention’s Article 49(6) has been grossly misinterpreted over the years to be a prohibition against the occupying power’s citizens. In fact, it’s only a set of injunctions on the occupier, and was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II. Article 49(6) doesn’t say that civilians can’t voluntarily move to live in occupied territory. Nor does it require occupying powers to make it difficult or burdensome for civilians to reside in these territories.

With regard to the West Bank, a sizeable portion of Jewish Israelis who live there today didn’t move into the area, much less were they transferred there by Israel—they were born there! And these settler babies and kids aren’t there illegally. So Article 49(6) doesn’t create a “no-go zone” for the nationals of the occupying power who wish to migrate into the occupied territory. Israel has indicated a willingness to trade away some of this territory as part of a negotiated agreement—having rights and title to territory doesn’t mean a state can’t waive them. But until that day comes, nothing in the Geneva Conventions makes it unlawful for Israeli citizens to voluntarily settle in a territory with no other legal sovereign.

Many other nation-states are regarded as occupiers under international law and have populated these territories with settlers, but these actions have garnered virtually no international opprobrium in comparison to the negative reactions toward Israel’s settlement of the West Bank.

At the conclusion of his talk, Kontorovich noted the double standards that have politicized international law, and undermined its integrity. Only Israel’s actions in the West Bank are deemed unlawful and worthy of boycott, even as plenty of other countries—including America—have occupied territories and enabled their citizens to live in them. Kontorovich points to over a dozen other cases (e.g., Morocco’s occupation of Western SaharaTurkey’s occupation of Northern Cyprus) along with a few that are less well known, like the U.S. occupation of West Berlin which ended in 1990.

Americans were never prevented from living in West Berlin or from opening up businesses there. Nor were any third parties ever told that they had a legal obligation to boycott American-owned companies there. In fact, Kontorovich notes that no one made any fuss when Burger King opened a branch in West Berlin. And during the 1970s and 1980s the place became a popular destination for many American artists and musicians …

To read the full article, click here.