Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  October 31, 2015 6:00am-8:01am EDT

6:00 am
6:01 am
6:02 am
6:03 am
6:04 am
6:05 am
6:06 am
6:07 am
6:08 am
6:09 am
6:10 am
6:11 am
6:12 am
6:13 am
6:14 am
6:15 am
6:16 am
6:17 am
6:18 am
6:19 am
6:20 am
6:21 am
6:22 am
6:23 am
6:24 am
6:25 am
6:26 am
6:27 am
6:28 am
6:29 am
anded establish the idc, was in the first of the president of the icc. currently the head of --
6:30 am
head director of publicity for the swiss foreign minister. catherine has done a tremendous anunt of work and was advisor. within the office of the general council at the cia at the start of her career. she is currently involved in so many international discussions i won't even list them. colonel gary brown to the left, the ambassador, is currently a security of cyber the marine corps university in quantico. thank you for joining us. prior to that, he was in the icrc in the washington office. he has been an advocate for cyber command and other military commands. there he experienced in this.
6:31 am
finally, david simon, who was in of the unnamed lawyers the new york times article yesterday. he is looking down. i shouldn't have said that. special counsel to dod, the general counsel's office for a long time. with otheroing a lot security issues. one of the real experts we call on here in washington. will do for the format is ask the ambassador to make some opening remarks. after he speaks, i will ask the three panelists to comment, and i we will have a little bit of interaction and open it up for questions. with that, we will get started. ambassador: thank you very much for organizing this event and giving us the opportunity to discuss the challenges of new technology. saidld just like -- as you , i am the liaison to the swiss
6:32 am
foreign ministry. i would like to give my angle and perspective on this issue. why are we interested? switzerland, as you can imagine, is not a current leader in terms of cyberspace or the development of laws. we are not known for engaging actively in warfare. so, what is our interest? interest is very specific. switzerland, as you note -- as know -- overtime, all of us have encountered many new challenges to the new technologies new methods of warfare. can you use existing rules or do you have to adopt? that would be my take on it.
6:33 am
if you have to adopt them, how would you do that? that is the work of diplomats. that is what you get into the rules of business. the first international maritime law convention was in acting 64 -- 1864. since then we have known the evolution of warfare. the issue of new technology came up very quickly. lever code,at the it outlaws poison. with systems that were not compatible with the tenets of international law. if you look at for the development, you have the dumb dumb bullets and all new weapon systems at one stage had begun
6:34 am
with. in effect there are two basic ways. either you out with them, or you try to see how you can apply it to the existing law. systemnowledge the only that was outlawed in a preventative manner -- before they were ever used. you have air warfare. if you look the treaty basis, you won't find much about air warfare. it was possible overtime to clarify the principles applicable to your warfare, probably the main activity in warfare. if you look at the law, you won't find much. it could be regulated. the talented -- on the
6:35 am
discussion of cyber. the first question would be can you deal with the -- with it under existing law? and can you apply existing law? on cyber services human group of governmental experts that used to report and said basically basically -- international law is applicable also to cyberspace. the interesting thing about these two reports which of the -- document in the international arena for the time out --s they cut that is something that he's to be debated. , on weapons systems, there was a discussion about
6:36 am
conventional weapons in geneva. there is still not a common definition. there is the basic consensus that in fact the law as we know it is applicable. this being said, that is not solve all the problems. that is what we can to the need for clarification. that is something that in the whenhas always been done you are facing a new phenomenon. how do you apply the law, which in principle is applicable but how do you make it applicable for the different questions? in cyberspace there are specific questions of -- that will have to begun with and are difficult to solve. if you look at a few of them, how do you define [indiscernible]
6:37 am
in cyberspace. haditha seems between military and civilian subjects? there are many questions. what is an armed attack in cyberspace? at one stage they will probably have to do some kind of consensus. and the question is how can we achieve a commonly agreed consensus? as long as there is no international consensus, each and every country will apply the rules they need, the ones they deem to be applicable. likewise for the upcoming weapon systems, when degree of human control is necessary? it's one of the main questions. for the whole issue of responsibility. how can you in the end ensure that a state or individual responsibility, robots, that are just running around and making
6:38 am
more? -- war? can robots be programmed to judgments like proportionality? how can you program that into a robot? these methods will be have to be solved at one stage or there is a consensus in principle that we can apply the law but we have to do much more how we do that. that is where i commit as a diplomat. how can you achieve this kind of consensus? how can you make sure that they all have the same approach to these questions? the easiest answer would be modified. -- caught a five. -- codify. that on some issues would be a , mainly also to
6:39 am
outlaw weapon systems like milk -- like landmines. to negotiate a convention takes a long time. and then you wait until all the states ratify them. that could take decades. it's not a very efficient way to deal with it. statespast few years increasingly resorted to what you could call a long mechanism. -- law mechanism. expert groupd, the to look into the issues. there were other attempts to cope with the phenomena. tearne that is most famous are companies that came
6:40 am
up with the iraq war. there were all these questions. how do you apply international law to private military and security companies? there was a process initiated in switzerland that assembled all the interested states. those who contract private military and security companies, the territorial states, and host states. they try to come up with the clarifications of the existing law to try to understand what really is applicable to private military and security companies. remaininghe interpretations at the beginning, it would not be possible to find consensus andeen the territorial contracting states. the divergence is were too big. in the end it was possible to agree on a document. the document was submitted to the united nations. today there are about 53 state,
6:41 am
among them the united states, which are a very active part of the process. you have the united nations. and you have nato. that would be one approach to regulate in case it was possible consensus and to find on these issues. --ther possibility could be if you look at the past there were different processes. processes on cyberspace. there were other issues. theof the weaknesses of processes [indiscernible] -- which we are discussing here. the countries involved were
6:42 am
mainly from the western world. if you talk about the western world that is respected by everybody, you have to try to give [indiscernible] we are in the process of trying to create a regular meeting of states of the geneva convention to do with international humanitarian law methods. which would for the first time freight a designated form to discuss these matters. one possibility maybe to then have the discussions within a forum that would centralize and all 197hat you have state parties of the geneva convention assembled in one group. a forum thatide would allow for furthering a common understanding of these
6:43 am
new issues and challenges. it could be imaginable to have , howssions either on law to apply rules of law. how to deal with some of these issues that i highlighted. or on cyberspace. that's a possibility that we could for the person have a forum that is really dedicated to these issues. it would not be a u.n. talk mechanism. we could really focus on these questions. that is where the diplomats come in. we then try on the basis of what the experts come up with, indications of how to deal with matters. we would have to try to channel the into political processes to make sure international humanitarian law continues to be meaningful and applicable with the new technologies.
6:44 am
thank you very much. mr. lewis: we will have a couple of remarkably good on the road. i think of belief are some of the panel who is not a lawyer. i don't know if that is good or bad. the link you are talking about, it is interested -- interesting. i wrote what i was a brilliant definition of use of force and an armed attack. it was really rejected by all parties. thissaid we prefer to keep to the area of national discretion. it's a difficult issue. and the preparations for the last round of talks the chair and i independently concluded that international law would not be the sticking point. and we were wrong with the application of international law. it's another vehicle the most difficult issue and we did not on it untilment
6:45 am
5:40 on the friday night of the last day of negotiations which ended at 6:00. it was a damn close ending. the use of force under attack is crucial. i'm not sure how you apply international law but it will be very difficult. some of the other things to think about our there is an arc that comes up with the application of international law. the drones. i hesitate to bring it up in the question for me is not switch robots but you have new kinds of military activity, new technology, new tactics. it will take a well to get agreement on how the law applies. there is consensus. you think the russians and the chinese would always -- would in favor of applying international law. i don't think that is right. they are interested. you notice in geneva there was
6:46 am
light which in the report, without saying it came from the geneva convention. they are willing to put the language and proportionality and discrimination but we cannot say reflected international agreement. a difficult issue and to think of it how you deal with new technology. one of the questions that maybe we can touch on and this is related to montroe, both involve. high degree of activity this blurring the distinction between clandestine and military. it's one of the things that makes it difficult to reach common understanding. this will be a project that we will be working on for the rest of the year in cooperation with the u.n. on how we rethink the application of international law. -- with a why don't i gloomy opening from the trenches, very difficult to get agreement on things.
6:47 am
why don't i start with david and go down the road. keep things relatively short he could and it will have an drastic discussions. here.s a pleasure to be i thought i would identify in the context of application of new technology. some challenges and difficult questions in a couple of principles that are operative and reflect some of the issues i saw in my time at the pentagon. in terms of challenges in this area with respect to the law of war, the recently published law manual at the onset of the chapter of cyber operations said this is not well-settled. it will take for the development. -- further develop. even though the u.s. government and other governments are quick to point of the law board does not need to change, it does not
6:48 am
need to of all, there was always room for discussion, debate and ultimately it's a matter of applying it to the specific circumstances. that is one challenge. how we can establish its application. the second challenge worth pointing out in the context of cyber operations is the question about exactly when jim was picking up on a moment ago which is the threshold question. cyber operations with all the threshold of the use of force. this is an issue that is not really addressed in a meaningful way in the first manual but in the second one it is thoroughly addressed. if you look at the president's remarks about the cyberattacks. 2015 view on cyber security or cyber strategy document that came out in april. it does not refer to the sony attack as one that would've reached the threshold by the article 51 or two for -- 24 of
6:49 am
the u.n. charter. in both cases the remarks indicate there is a violation of some sort of normal state behavior. attack, the attack on health insurance companies. it's ready for these and categories of activities that fall below the threshold of the use of force. -4.tainly below 2 forher legal work is needed an international legal framework including an international law or for cyber operations. those are the same kinds of questions we have to address with respect to autonomy and autonomous capability. they are difficult questions. what law applies? there is a debate about countermeasures, proportion. these are tough questions. was the difference between armed conflict and peace time? when is it not wartime?
6:50 am
that are basic questions drive decisions that governments make about how they apply law. the dissension between combatants and civilians, especially with nonstate actors. andy questions about attribution which the relevant not only to cyber operations, but also relevant to operations involving nonstate actors. look at ukraine, yemen, syria today. these are all significant issues that have nothing do with cyber security or cyber operations percent. -- her say. the administration has been clear in striking this through a variety of speeches by lawyers and the administration. we have to make as much information about a legal framework as public as possible, mindful of the fact there are sources and methods in operational security considerations. look at the president archive
6:51 am
speech going back to may of 2009. thing i flag in terms of principles is through this kind of openness you can really identify constraint. which are legal and policy nature. in which i'mss involved in limited ways. it does involve a number of other countries. russia and china are involved. they even have a law for lawyer involved. -- law firm lawyer involved. the role of the process underway and the debate about what we make of the response of the u.s. government or other governments respect to attacks like the sony attack. the only thing i point out is there is policy transparency here. if you look at the dod autonomy very clear that
6:52 am
the role of international law will sort of be applied to the spec cannot only the design and development but the fielding and testing, the employment of these capabilities. i was one of the two lawyers involved in helping fashion that directive. i know it plays a significant role in thinking it through. the tough work is understanding with the technology is intended to do. and how the law will apply. those are the two things i mentioned in terms of principle and and with the notion that through identifying those constraints, legal and policy, we empower our decision-makers who are in a better position to cooperate and collaborate when a contingency does arrive. mr. lewis: a couple of quick notes. there is language in the last report that talks about that you
6:53 am
agree not to attack critical infrastructure in ways not consistent with international law. the original phrasing was "you agree not to attack in peace time." there were some nations that objected to the word "peacetime." we put in consistent with international law. in a you agree not to attack critical infrastructure. you've agreed you only attack in a situation that is not covered by the law of warfare. 2-4,'s point about article the renunciation of the use of force to settle international disputes. an article 51 which is the inherent right of self-defense. there is an inherent ambiguity. there is an intentional ambiguity i think between a commitment by states not to use force and provision that allows them to use force. this is one of the more powerful tensions.
6:54 am
we are in a different world. this is one of the problems i have with -- i was just at the u.n. last week. the issue that has come up as whatever rules we come up with left be rules that are acceptable and make sense to the nonaligned movement, the g-77, to the countries that are not participating. this is a crucial change. gary? >> thank you for asking me. this is a really fun topic. because there is a detachment of marines here i guess i should say i'm speaking on behalf of anybody else. even if i knew what they wanted me to say. autonomous weapon systems and cyber are perfect illustrations of how we need to work to apply international humanitarian law or what i will call law of conflict.
6:55 am
they illustrate the two different ends of the spectrum. there are a lot of projects going on now with autonomous weapon systems. i've been involved in a few of them. we were really, really hard to come up with interesting legal issues that have to do with autonomous weapons systems. there are not any really. they are lawful. the current law covers them fine. everything is good where we are now. if we looked over the horizon in maybe 10 or 20 years down the road and talk about the -- artificial intelligence for the system is able to select and legallyarget legally -- -- lethally without a select set of criteria we are talking about artificial intelligence. that create interesting issues. and there is cyber which is always interesting but not really autonomous weapons systems. that is also like skynet, and we know that is a vanity of the is
6:56 am
of the terminator thing. >> speak for yourself. [laughter] col. brown: and intelligence like that would probably decide humans are the problem. there are not really in issues right now. to some extent autonomous weapon systems are in place now. they can -- comply with a lot now. -- the law now. computers are really good for things like that. asm my perspective not quite a big -- as big a challenge assembly is to believe. cyber is completely unique. one of a given how we take the law of armed conflict and try to get it to apply the cyber warfare, especially today in the 30th of october, i am mindful of literally like i took my son's batman halloween costume and i tried to get in it. i might be able to stretch the
6:57 am
thing enough for me to fit inside of it. in the end i might look something like a husky batman. but i would not really look like what it was meant to look like when it got to the end. my son looks like batman and i would like some other thing that is similar to batman. oac looks like when we apply to cyber. i will lay out three of them although there are many interesting things we can talk about here. two of them have to do the role of states in armed conflict. the first one is states and operations. one of the thing that traditional loac was premised on was the monopoly on violence. when you talk about large-scale military involvement, state on state, we have the rise of nonstate groups. we usually have a state on one side and that has sort of started to break down. it is sort of broken on the server side.
6:58 am
most of the stuff that is going think, or ater we least a lot of it has to do with armed groups or individuals or individuals who are loosely affiliated with states are trading all types of problem with -- problems with the application of law. they are not interested in applying the law. that is sort of of the operations side. on the law side we talk about oac came of states, l out of the custom and practice of nations engaged in armed conflict. some things work in something different -- didn't. unlawful generally first. generally first because of the practice of state and sometimes later work caught a five -- codified. most of the time began as state practices. remember,k at cyber, this was made by the practice of
6:59 am
states. not by the practice of individuals are nonstate groups. when we are talking about cyber operations, let's count all the operations at state 72 engaging in. -- states have admitted to engaging in. yes, not. -- none. we have saudi aramco, we have sony, and a lot of people pointing fingers about who might of them which are what. states are not putting up their hands and said we did in here is why we did it. this is really an impediment to the developing of law in the area. it is truly slowing. states are not ready to commit to what they want the law to be so they are not putting up their hands. we are very early stages. it's a big impediment to the development of the normal law of armed conflict. i'll talk about one more thing and that is sort of playing on
7:00 am
something we talked about before. looking at the specific application of the law of armed conflict. most ofrmed conflict, the rules we had were developed through kinetic events. things break, things are destroyed, people are killed. all bad things. cyber operations and the lifeility of making difficult for civilians, damaging national security without all those things that operations have the potential forgot all the time. no kinetic effects. the law is not made to deal with those things. we can start by saying we should talk about functionality or loss of functionality which is what we talked about in the time group. i am not convinced it's a good again because whatever rules to make for cyber, we are changing the entire body of the law of armed conflict, it relates to kinetic warfare.
7:01 am
will states agree to a world that if you limit the functionality of an object in kinetic warfare and somehow it is been damaged? will it apply if you drive military con creep across the bridge -- concrete abrazo bridge -- across a bridge? you're just using a bridge to cross it. there are all kinds of things that flow from trying to stretch this body. mr. lewis: there does appear to be implicit agreement on the threshold for what qualifies as the use of force or an armed attack. it's even explicit in some of the negotiations among states. that it has equivalent effect to kinetic effect, the cyber, it's always implicit understanding of this point. the difficult area is the gray area you talked about non-kinetic.
7:02 am
i think one of the things they get lost in translation is this discussion of the use of force on an attack threshold and there is a separate threshold inside armed conflict for the application of rentable proportionality -- proportional. that was the point about countermeasures, the law of countermeasures is an important one. it is not been discussed as much of the cyber content. it was raised by one of the euro d >> you will probably see it come back, so it's an important point. we'll have catherine speak, then we'll ask the ambassador if he has any reaction, and then we'll go down the panel again and turn to you. >> thank you. thanks for coming, actually, today and thanks for inviting me to speak. i love the opportunity to talk to my students and just about anyone about international law. i do tend to go on for a long
7:03 am
time, but it's something i'm very passionate about. often whether we're talking about cyber or i'll actually begin with kind of describing a definitional approach, automated versus autonomous weapons because we're really focusing on autonomous today. i've been at many policy meetings and discussions with state leaders, and i've often heard the expression when a question comes up, does something rise to a level of a use of force, to a level of armed attack, i go off and start talking about international law and what principles we know and examples and cases where the icj has given some, although limited, insight. and typically what i hear back from policymakers is, catherine, that's all nice and sweet, but it'll be decided by, in the case of the united states, people saying it, the president of the united states will decide if something is a use of force.
7:04 am
and that's a political decision and not a legal decision. and i always strongly object to that, so i'm glad we're talking about that today. yes, at the end of the day, it may be the president that authorizes the use of force, but that use of force may not be internationally accepted as legitimate or may not be considered legal under international law because you're responding to something that was less than an armed attack under the charter. so from my interspective as an -- perspective, it is not just a political decision. certainly, the states are involved, but it is a legal decision, and we've learned from practice and the past that it's not one for one state to decide on its own whether something is legitimately a use of force. so this is exactly why this conversation's important and why it has to be international. when you're trying to come to terms with something that is a challenge and the technology, the development of it. what i find interesting and unique both in signer and the
7:05 am
autonomous weapons like robots that have yet not been fielded into warfare but is generally accepted as coming is that we have a unique opportunity. some of us are working on cyber for a long time, couple of decades. most people are recently introduced to the topic as we see some of these very visible intrusions and hacks. but truly in the autonomous weapons like robots, we do have an opportunity, because they p haven't been fielded yet, to set out procedurally what would be acceptable, right? we have to think carefully particularly about truly autonomous weapons because they're starting to be developed now. first, kind of laying it out. the debate on i on the mouse -- autonomous weapons are about whether these weapons are per se prohibited under the law or that there's possible unlawful uses. and i think gary said that, made his position clear and i agree with him that there is nothing
7:06 am
per se unlawful about these weapons. and that goes for cyber. notice be i won't talk about drones because drones technically -- i say to my students, i'm definitely type a on definitional term, and i do make them understand there's a difference between automated weapons and autonomous. drones, as they are used and deployed now, are automated, right? autonomous be means there's a human in the p loop. there's somebody at a joystick, if you will. the autonomous weapons, though, that is kind of not here yet in terms of fielding them in the battlefield. when you think of robots and artificial intelligence. when we think about the debate, i do have to say this is one area where i disagree with human rights watch which sometimes that happens. >> that's a good thing. >> louis and i disagree on things, we're friends, but we'll duke it out after the panel. [laughter] for those of you interested in the legality of autonomous weapons, i highly recommend you
7:07 am
read it. it came out in 2012. the name of it was losing humanity: the case against killer robots. their conclusion that autonomous weapons per se were unlawful and unethical. i disagree with them on that. but the debate is that, whether it's per se -- and we have some weapons that international law and states have agreed to are per se unlawful meaning you cannot use them, right? i am in the camp, and gary made it clear a that it was his position, so i'll align myself if you don't mind, that they're not, these weapons are not per se illegal, but it's about how we're going to regulate them in warfare. and that's what's going to take a lot of effort among technical experts, policy experts, legal experts. and the result may -- and i'll end with a few options. we may end up with an international instrument like a treaty. we might, we may not have to. on the treaty discussion, i will say it has been my position on new issues, threats or technology that's developed over the years, i've always been in
7:08 am
the camp -- and some have strongly disagreed -- that we don't need a new international treaty to deal with these things. it first came up after 9/11. some people said we need a new yes geneva convention to deal with nonstate actors. i said, we don't need it. that came up in cyber. before it was popularly discussed publicly, many people said, catherine, we need a new treaty. they believe still we need a new treaty, and i'm still of the position it's not about creating a new treaty. we have applicable law, we just need to know how to apply it x. then last, about autonomous weapons i do believe the same. why don't i believe a new treaty is necessary or needed? one, you must be cautious when you start drafting a new treaty. you do not know what you may end up with, right? and while we might think we have
7:09 am
a lot of foresight, you may be regulating yourself in a way that's unnecessary or actually bad. and as already stated, it takes a long time to negotiate treaties, and we don't have that time. in the meantime, what you should be doing is states coming to agreement about what those rules of the road will be as weapons. and so here are some of the legal principles that are important to think about. gary mentioned bellum. both areas of international law, although related, they're very separate. autonomous weapons as to how they comply with these principles. under cyber we've already got agreement that the u.n. charter applies. autonomous weapons, we don't have that yet, and that's where states need to be working on that. now, in terms of signer and autonomous, i'd say -- cyber and autonomous, the best example we've seen in the cyber context is stuxnet. experts have said it had to have
7:10 am
been a state, thiess a state. so we can -- at least a state. so we can talk about it in at least a hypothetical, that a state has used a weapon that is autonomous in a sense. you can have cyber weapons that are actually not just out mated, but are -- automated, but are truly autonomous. here are the legal principles, though, for both cyber and autonomous weapons that need to be considered. and this is where i disagree with the human rights watch where i can kind of counter some of the things they say. the three major principles in the laws of war which some of which have been mentioned, but i'm going to emphasize them. you have to look at whether weapons are indiscriminate by their nature or not. i do not believe autonomous weapons by their very nature necessarily are indiscriminate. that would be an argument that would support human rights if i was wrong. unnecessary suffering. if a weapon is developed where it causes unnecessary suffering,
7:11 am
then it would be unlawful per se. and also the last principle, harmful effects that are uncontrolled. you have to be able to, in warfare, to scale back, to reallocate, right? in order to control the harmful effects. particularly to protect civilians. this can be built into autonomous weapons and, therefore, my argument not necessarily per se unlawful. on the targeting law, which gary is very familiar with as a former jag officer, you have to be able to develop and field a weapon that both discriminates and make a distinction between civilians and military personnel. also the weapon has to be able to operate and make decisions or at least operate in a proportional manner. when we're talking about autonomous, that has to be preprogrammed, and this is what needs work. and also you have to have precautions in your attack. that needs to be built in any
7:12 am
autonomous weapon whether they're cyber or it's a robot. and also you have to -- the presence of civilians have to come into the contemplation in developing these weapons. here are some quick options for autonomous weapons. maybe you get an international instrument or a treaty -- >> maybe we could come back to the option. >> okay. >> and then, because i think that will be part of our ongoing discussion. >> okay. >> and i thought this might be -- that was a good lead-in that i was going to ask the ambassador if he has any reactions to what he's heard so far. i think one of the things we'll want to talk about is options. you should be thinking of questions. i have at least three, so, ambassador, did you have any -- >> thank you. i'd like to build up on something david said, the transparency that is applied in the united states. listening to you my impression is that there are probably not many countries in the world that have your level of knowledge
7:13 am
about all these issues. and in the united states, it is transparent to a much larger degree than it is in other countries. the challenge we will have to face is how your knowledge -- because you are at the forefront of the development of these technologies in cyberspace -- how can we make sure that the understandings about the applicable rules are shared by others? you mentioned that in the -- [inaudible] that it was a rather restricted group. and the fear i have is that highly advanced, states that are highly advanced in technology will just move forward and lose, so to speak, the others. and the important thing to find international mechanisms. what you have discussed to a large extent internal
7:14 am
discussions in the united states, you mentioned the law of war manual that was issued by the pentagon. and we are trying to have have ways to share your knowledge and also to share the readiness i do think that the united states has to have a lawful development, to find ways to apply the law to these developments. because i'm not certain that this attitude is shared by ohs who -- by others who may be as advanced in these issues as you are. we know that other big powers are now slowly proposing new legal rules. one of them had even proposed codification in the cyber debate. and the issue is how can we make sure that those who really have an interest in applying the existing law, as you mentioned, to these new technologies, how can we make sure that we have a
7:15 am
very broad consensus among the different countries? and i think you mentioned it, but it's very important to have -- [inaudible] to have others. because india, they will follow. you mentioned the autonomous weapons. that may be in the hands of the few at the beginning. in the end, everybody will have them. so the rule setting will have to start now. you said for the time being we do not have problems, but the earlier we start with a broad-based consensus member numb to -- mechanism to find common agreements or understandings, i think the better it is. last remark to gary, your remarks on cyberspace to say that it's like -- [inaudible] in the end, if you think to the end what you say, you say there is no regulation possible because attribution will not be possible, it's all clandestine,
7:16 am
nobody will live up to, will say that it was his or her attack and all of that. in the end, we will have to find ways -- and i would just like to give one example. you said that it's very difficult to distinguish between nonstate actors and governments and how they interact. i know that technically speaking it's probably very difficult to see who does what. but wouldn't it be possible, because we also have rules in law that regulate the relationship between the government and private actors. wouldn't it be possible to try to develop these rules also to this new relationship in cyberspace? it may be too early to know how that will be done, but the basic principles of when a government will have to take responsibility for the actors it controls or it works with k and we know that. so it's probably the challenge to find out how can we apply
7:17 am
them to cyberspace. >> actually, that was going to be one of my questions, so maybe let me ask the question, and if it's right -- i'm not a -- [inaudible] i will say that the lack of expertise on how cyber warfare is conducted or what the effect of a cyber weapon would be, a cyber attack would be is a major impediment in negotiation. and so you have many nations who are deeply concerned but don't have a good understanding. and the public accounting of attacks is largely pathetic. so, you know, they read something in the paper, and it makes it a very -- much more difficult than others. but the question i was going to ask gets back to this state responsibility issue. and the one that's to come up repeatedly, although not with much clarity and maybe we'll go down the row, gary, is the ruling of the international court of justice, the nicaragua case, which is painful for me personally. >> for other reasons.
7:18 am
>> yeah. it comes up as a precedent to exactly the point you were raising. i don't know, can we go down -- gary, do you want to start? then we'll go to catherine and to david. >> just to respond to a couple of things the ambassador said. first of all, i would say my comments didn't mean -- by my comments i didn't mean to imply there would never be any regulation. all i'm saying is i'm not sure it's the correct body of law. i think maybe if we stretch low lowac, nobody can wear it. if we stretch them to the point where nobody agrees, it's pointless. we don't want to lose this body of law because we're trying to stretch to it apply to cyber operations. the one other direct point i'll make is that when as far as states being responsible for sort of loosely affiliated civilians with them, my suggestion there is let's start
7:19 am
with the clear situation we have which is the little green men in europe that may be affiliated with some big power over there in europe. [laughter] and what solved that problem, once we solve that problem, cyber will follow. until we can solve the problems in the kinetic world, then i think it's probably futile to try to solve anytime the cyber realm. and there are lots of other issues with attribution, but lots of people talk about -- >> if i can build on what gary said, in terms of the applicability of lowac applying this to new technology whether it's the autonomous robots or cyber weapons, you know, is where we may disagree a little. but i get his point that you don't want to twist and turn the law so much that you undo its intelligent. however, i'm of a position that the principle that underlies the
7:20 am
traditional treaties of lowac, geneva and hague, can be applied in both the cyber weapons and even in the artificial intelligence as is starting to be discussed in terms of how it would develop one day and be used. this is why i was happy in the report that came out in 2015, the most recent one. while there may have been disagreement about whether states felt comfortable invoking the phrase be laws of armed conflict in that report, yes, i would have liked to see that specifically, the important part for me at least was they actually agreed in that report to the principles that are codified in international law in loac. they actually said that the principles of necessity, distinction or discrimination, proportionality and humanity apply. i think it might -- did you -- was there military necessity in
7:21 am
there too? i'm not sure. >> no. >> effectively, when i read it, that strucking me as very telling. they had at least 20 states and security council members but importantly some cyber powers like china, russia and the u.s. which have been in disagreement, they apparently all agreed to that, and i think that's important. it has almost, more importantly, the icj has told us in rennering decisions over the years -- rendering decisions over the years not necessarily that a treaty per se was honored. and that's now on the state responsibility, another thing that i was happy to see in the u.n. gd report both in 2013 and 2015, the principal state responsibility was in that report. that goes to an important element when we have nonstate actors that will continue to be engaged in military uses of force. how do you hold a state responsible for the actions of nonstate actors?
7:22 am
well, in international law this debate's been going on for years among professors, right? for a long time. and until 9/11 there was quite a lot of pretty. after the u.n. recognized through its resolution that terrorist organizations could actually carry out an armed attack which triggered article 51 which howed the u.s. and other states -- which allowed the u.s. and other states to use force against them in another state that we weren't at war with, there were a few outliers still. for the most part, people recognized that this debate is not -- [inaudible] you can actually attribute the activity of nonstate actors to a tate and then hold them accountable. -- to a state and then hold them accountable. here's where the debate still lies. there are two thresholds though. the nick nicaragua case came uph a hard threshold, and they came up with effective control. that's high. meaning what kind of evidence do you have to bring forth that shows that the state, using
7:23 am
proxy, has effective control over those proxies that were acting. that effectively means and has been interpreted that the state you have to know and show that the state is directing specific operations. well, they must not be doing that. we know in cyber they're not doing that, right? and in ore autonomous weapons. they might not be directing, but what if they're funding? you've got a group that's willing to do your work whether it's a company, it's an academic, it's students in university in cyber, we know that's being done. but the case which i refer all you guys to read one day, in that case -- and mike schmidt disagrees with me on this, so we've had friendly disagreements -- the court lowered the threshold. that's my position. just to be clear, not all international lawyers agree with that. and they came up with a new threshold of overall control. and now this is key, i think, in cyber, and i've written some
7:24 am
very boring and long law articles on this subject, here's the challenge, due diligence. that is the legal threshold. you have to show that the state failed to do its due diligence internal to its territory to prevent these nonstate actors, individuals from harming others outside. it goes back to international -- [inaudible] so that is yet to be determined. but having geeky lawyers get together and talk about these thresholds even with the russians, now on the annuals i do -- manual, i do have to say something. >> let me just put a footnote n. nicaragua turn out to be very influential in any discussion of how to think about applying international law. >> i'm glad someone thinks so. because i write about it -- >> i have to go look them up when i'm sitting there looking at other countries -- >> yeah. it's very important. but on the manuals, i think it
7:25 am
is very important irrespective of whether an international treaty on autonomous weapons or cyber ever comes to play, this is my second option actually. what you need to start seeing is national laws or procedures starting to be develop canned. the u.s. has been pretty transparent in our policy. the u.s. will not be able to be totally transparent, because a loot of -- a lot of these documents or directives will be chatfied. last year or the year before i was in moscow, i had a small group conference this about cyber, small, it was like 30 people in the room, and they were all russians and me and my colleague from brigham young university were the only americans. what i got concerned about was not that the russians were kind of denying that they did cyber operations, which kind of flies in the face of their public announcements over the years, but they actually asked me whether the u.s. had manuals. and i said without talking about anything classified, i said,
7:26 am
listen, the united states has been very clear that the laws apply. and in the united states practice when they say that, we sign up to loac, that means particularly the military starts developing manuals. most of those will be classified. i said you should be happy that we have manuals. i said, so can i ask you a question, do you have manuals? the russian official said, no, was we don't do cyber operations. i said, okay, end of story. [laughter] but that is important in terms of developing these manuals. and in the international legal community, there are many, many of us around the globe that work together. like you mentioned this forum in geneva as you start developing that, that's the slow work of making progress, right? and tend to be not very high profile, not sexy, pretty geeky, but that's how it gets -- even if we never have a treaty, that's how you start to get agreement. >> david, did you want to add
7:27 am
anything? then we can turn to the ambassador, and then we'll get to the questions. just quickly, we'll close out on this one. >> sure. on one hand, do we need new law right now in light of the new technology and all the possibilities. on the other hand, can we sort of search back and look at what law exists. i think you kind of hear both answers, but what i think is something yogi berra said, it's kind of tough to make predictions, especially about the future of of. [laughter] we have cases the international court of justice which can be used to argue on both sides of the question. the corporate channel is not well understood but is certainly important for understanding thresholds of use of force. so when you kind of look at these and say, okay, what's available? in 2012 in the be first few moments in terms of getting into these issues, the obama administration and then-legal adviser of the state department harold coe laid out exactly how we think the law of war applies
7:28 am
to cyber operations gets into specific effects, and it sort of rests on a physical effect in the real world as a basis for establishing that there's been a use of force. but that's something that a lot of countries -- not too many countries have come out and seen this. the law of war manual which was released recently, it's like 1200 pages, and it's all publicly available. and it can enable the kind of public denate the ambassador is discussing -- debate the ambassador is discussing, and i think it's really important. the only other thing i would say is what sort of unites these questions about whether the law needs to change or whether we just need to know better what the actual circumstances are, is this a question about attribution? if you can attribute it to a state, then we know at least the draft articles of state responsibility apply, we understand what the geneva conventions said. i think the tough thing is knowing whether a state's responsible and then there are consequences in attributing it.
7:29 am
and that's tough call. and in the cyber realm and the realm of using any of this new technology, we, i think, are mindful, i am, of advising clients in the private sector that a lot of foreign governments don't distinguish between the public and the private sector the way we to. these are a lot of the sort of challenges that i think relate. >> the disparity in attribution capabilities is also a significant obstacle in negotiations in that a few countries, largely those with very powerful establishments can attribute the majority of attacks or cases. but that is a handful of cases, perhaps less than half a dozen. and so when you get the others in the room, they cite attribution as an insurmountable problem. it's not five years from now, it will be seen that it's easy to
7:30 am
attribute the source of an incident, but currently it's a major obstacle. we had a question in the front, and i have a question first. are we going to use -- okay, we are. how exciting. >> hi, good morning. my name is dr. donna wells, i'm a mathematician/economist here in washington. can we talk about the commodities market and -- [inaudible] to regulate price indexes? investigating the price of gold? thank you. >> did you want to take that one? >> i'm sorry, i didn't understand. >> oh. the question was -- do you want to rephrase the question one more time? sorry. it was about -- >> yes, sir, thank you for your patience. i'm a georgia tech-trained engineer, so i know about cyber stuff. essentially, a price index, you know, for gold or copper or silver, everything electronics has copper in it, and so the
7:31 am
price index, that's a lot of money. and so, you know, what regulations are in place to make sure that these price indexes are reflective of supply and demand? is that in place yet, these new systems? can we talk about that? thank you. >> sure. >> i have no knowledge of the field. >> okay. i thought you'd done a little work on some of the economic issues, no? probably not. >> on the price index of gold? >> yeah, no. not on that. >> not my field of -- >> well, we'll come back to that one. give us time to think about it, and we have one on the side there. we get back to you though. >> hi, i'm -- [inaudible] a little more broadly economic, although also when you're talking about the threshold for attribution and the control over state groups, i wondered if there's any way that political and election law could apply to this. but in terms of the economy, if you start looking at a lot of
7:32 am
the series of attacks as indicative of a broader campaign, and the one that deals really with economic warfare and kind of economic destabilization, is there still an applicability of armed conflict law there? does sort of the fact that you're dealing with wholly different aspects of nation-state international relations, does that change the complexion of it? or do you see this as truly universally applicable sort of across that realm of relations? >> so i think this has come up a couple times. les an economic element that -- there's an economic element that apparently we at no time touch on, but it's come -- we didn't touch on, but it's come up in this notion, i'm going to mock it a little bit, that china has a death by a thousand cuts, etc., etc. , and this is an intentional effort to undercut the united states and other western powers through economic kind of very
7:33 am
slow drip economic warfare. putting aside whether or not you believe in it, my own feeling generally is if it sounds like a charlie chan movie, you should reject it. but i think that's the question. if you have these long-term economic campaigns, how does that, how would that be treated by the laws of armed conflict or international laws? and you know what i'm talking about, there's been a couple articles about china's alleged strategy. >> well, let me try and then you will, you will accompany me. [laughter] i have been following these articles on economic warfare. i think we have to be careful with the terminology we use. economic warfare is a political term. and if you wage war against another country but with economic means, that may also be, you know, with a natural competition between countries. what we are talking here is
7:34 am
armed conflict, was involvement with force of military. it's a bit like the war on terror. the war on terror that was called by the bush administration is a political term. in our view, it's not a legal term. the legal term clearly defined in law in bellow, and all the other so-called wars, if you could have a war on drugs or a war on organized crime, these are political terms that are not, that to not follow the laws of war. so how you regulate price indexes are to make sure that they cannot be of use, that can be regulated by other means. but that would be spirally different. i'm not -- entirely different. i'm not familiar with the commodity trade.
7:35 am
i do not know what would be the right forum. but you could also extend this to other economic areas like, for example, customs. you can lower customs in a way that could bring economic problems to another country and then undermine its stability. so you would have, you would go to the world trade organization to try to address these issues. but we have to be very careful with the term "war" on something. an economic war, my view, is not a legal term. it is an important political term. but then we have to find the appropriate forum where to deal with it. and most of them, most of these issues have to be in the regulatory framework of international trade, for for example, that we have to -- >> in 1945 those who drafted the u.n. charter at the time, they actually made it really clear because there was a debate among the states. and latin american states were
7:36 am
in one camp. the top issue came up, does economic action -- whether you want to call it sanctions, that was the legal issue, some people refer to it as warfare and broader -- would that trigger the u.n. charter? meaning, would that constitute a use of force in the answer, and which is still the answer, is no. so we know the economic actions, and this comes up on the cyber with china with the ip theft, right? many other -- >> you were thinking, but i was thinking the rare earth issues as well. >> yeah. and that's where the wto, there are other international regimes which deal with actions that involve trailed and economic relations -- trade and economic relations. but in warfare, even the u.n. charter, the word "war" is not in the charter because that word is kind of a thing of the past in international law. they talk about united states of force, armed attack, laws of armed conflict.
7:37 am
it is about conflict. not the economic kind. and that's why i agree we the ambassador. it's a political phrase. >> and maybe we should all take a pledge never to use the term "act of war" again -- >> yeah. >> because that's so imprecise. i didn't mean to interrupt. >> i was just going to ask ask didn't the new tyler manual use the term war? >> the dod -- [inaudible conversations] >> always used it. >> yeah. in the context of -- [inaudible] resort to use of force. but, you know, this idea with respect to economic warfare as it's referred to, there's certainly an international legal foundation for economic sanctions. you look worldwide, you know, the sanctions that are discussed in the context of the iran deal. one that has been in the news recently is the u.n. security council resolution 1929, question about whether it was violated by the launch of a ballistic missile by iran in october. i mean, this is something that the u.n. security council under
7:38 am
chapter seven, article 41 passed. and so it has international legal standing. it's an obligation. it's not a basis for use of force if someone violates it, but so that's an example where states like the united states and the e.u. have imposed domestically or sanctions. but i do think the sort of legal basis separate from a u.n. security council resolution is sort of the same kind of question about thresholds below the use of force. so the law of countermeasures or retorsions, these sorts of things, inform that as they would these questions that we've been discussing. >> let me ask gary when he responds if he could start or, include -- and all of you can jump in -- a little discussion of the law of countermeasures which is for actions below the threshold, our yet-undefined threshold of the use of force. the law of countermeasures, i think, has recently been introduced into the cyber
7:39 am
discussion, but i think it will be a major topic in the future. >> it's a great topic, and i'll say a little about countermeasures. the first, let me as the military guy on the panel, i guess i'll dumb it down back to the actual law of armed conflict when we talk about -- i love the question because what it brought to my mind, i don't know if you remember, at one point it was actually controversial that u.s. and allies were bombing oil refineries that were controlled by isis to take away some of their economic capacity. so in the context of armed hostilities, taking out economic targets was at one point controversial. we don't hear much about it anymore. i think maybe people decided it was a good idea. putting that aside, think about the cyber equivalent of that. is it okay to use cyber techniques to do, to recreate something like the flash crash? if you remember that where hundreds of billions of dollars of value in the stock market disappeared in a microsecond
7:40 am
because of some -- and that could be done as a cyber attack as opposed to somebody factoring in maybe, although really we still don't know exactly what happened for that event. or just hacking into financial systems and making value disappear off the books as opposed to stealing it. i think for the most part we've decided we're going to handle that with law enforcement and domestic law, but inside the context of armed conflict, there might be a role for that. and, again, that points out some of the problems of applying this body of law to cyber techniques. countermeasures is a hot topic now partly because there isn't this con seven us on how the law -- consensus of how the law of armed conflict applies. so there's a feeling with a lot of the states that are wig -- big targets of cyber, hostilities or fences, i don't want to call them attacks, something else. cyber nastiness. there's sort of a feeling that we should be able to do something.
7:41 am
we're starting to settle on a consensus, i think, that where somebody does something that violates the law, i can, i can -- for lack of a better terminal though it's not a good, accurate term -- hack back or use electronic measures. >> you as the state, not an individual. >> you as the state could hack back. it's mostly focused on the cyber response. to make it stop. as long as you're proportionate and it's necessary to make it stop. >> is it fair to say it would include sanctions, and that would be part of -- >> i think that's easy. >> yeah. >> yeah, that's actually much lower and would be at the retorsion level which doesn't require an illegal act in the first place. the thing that you're doing in response would ordinarily be unlawful but for the fact you're doing it as a countermeasure it's really legal. >> isn't it when you say it. >> today you say, so one thing i'll disagree with is that there have been some people who have been writing on this for a long
7:42 am
time, but it's usual in the international law crowd, right? the academics. but, i mean, we're talking about things under the threshold. when you talk about the laws of countermeasures under international law, it's any activity that's under the threshold of article 24 of the u.n. charter. you know, what is your response? my first article -- so the norm of nonintervention has now become popular. well, my first article on cyber and the law of nonintervention was in 2001. i mean, there are people who have been working on this -- the issue on countermeasures is what can you do in response to manager, an action that you've suffered as a victim when it's below the 2-4. you're not talking about use of force in an armed attack, but things like invasion of sovereignty. the norm of nonintervention, you've had an intervention. the reason why i started thinking about it is i came from the intelligence community, and espionage is below 2-4. so there are things states can do, and they're called countermeasures. but there are specifically-defined principles of the law of countermeasure.
7:43 am
i do believe policymakers need to pay attention more to policymakers -- the law of countermeasures. but academics, it's been part of the law for many years, and it's very relevant in cyber as most of these intrusions are below the 2-4. so i think policymakers maybe should just read a little bit up on what the law professors have been saying over the years. >> well, i mean, to respond just a little bit to that, it's nice that the lawyers have been writing about out. it's not come up in international political discussions until this year. >> yeah. >> so perhaps the discussions have reached the point where understandings are sufficient to talk about it. but this is the first year i've ever heard of having done this now for six years. >> yeah. and i think it's the ip theft that really triggered the interest with china. when you saw much of the discussions documenting the damage at least to the u.s. from the cyber-enabled ip theft, and that's -- so i ended up because of that wrote 101-page law review article on what can you
7:44 am
do in response to state-sponsored -- what i have said, economic espionage. and that's not the company on company or country on company, it's country on foreign company, turn around and give it to your private sector. >> 99 pages, maybe we would have read it. >> no, it's very boring. >> 101 -- [laughter] >> these aren't new concept, right? the word countermeasures are has a particular purchase right now. but in the legislation that congress is debating that's before the senate, they use the term preventive measures, it has the same kind of meaning. the word reprisal which is sort of not be, well, not in good favor now is the term i think was used in some respect. countermeasures is a per se illegal act. a retorsion, and you can kind of get in this nomenclature, but what is a proportionate response. and so when the president said after the sony be attack we are going to respond in a
7:45 am
proportionate manner in a time and plus of our choosing, that's in some way embracing this kind of a concept. it's in the dod cyber strategies this year. and so there are basic rules. necessity, proportionality that apply to whatever your response happens to be. but i don't think this is a question of needing to, you know, make up new law. it's there. it's just you have to read the nicaragua case which is well more than 100 pages and the corporate channel case and the oil platforms case. so there's a fair amount of legal guidance there. >> gary or ambassador, did you want to say anything on this? we're getting close to the witching hour, which is good for halloween. i think we have time for at least -- we have two, three questions. we'll do the three questions. could i ask perhaps that we ask one, two, three the questions and then we'll respond to them so we can keep more or less on track? so we've got -- hold up your hand if you were going to ask a question. we had that one, one at 12:00 for me and one over here at 10:00.
7:46 am
>> i'm herbert -- [inaudible] i have a question on international private, or international criminal law in regard to the countermeasure. and specifically to the first chamber of the icc on this regard. that if there is a criminal act that is a part of intervention in civil war where suchdown measures are being used, doesn't there leave a certain room for discussion, this implication of countermeasures in terms of the criminal law issues? >> okay. and we had a question will, and we had one final question. >> hi. my name is mike, my question's for the colonel, but if you guys also want to weigh in, that's great. one of the things cyber does is allows people remotely to engage in a conflict that they maybe would not be able to engage in otherwise either because that's
7:47 am
the expertise they wring to the fight -- they bring to the fight, or maybe they're not willing to lay their life on the line by going to, say, the middle east and engaging, lifting up an ak-47. now, when the u.s. military killed hussein, an isis hacker, prop began dis and recruiter, back in august, the dod can essentially said that thing you were going to support remotely, we'll kill you for that now. we'll come and find you even though you're not actually on the battlefield. so my question is really two parts. one, does that inform the discussion of deterrence in cyberspace? and, two, is there an issue of reciprocity at play here where the u.s. military cyber community should now be thinking about how other states might respond to the u.s. dod who,
7:48 am
say because of the stand up of the new cyber mission forces, are now doing these sorts of cyber operations? >> okay. and then the last question. goo morning -- good morning, united states marine corps. syria, which is a mess and is only getting messier, you've got the russians being invited by the recognized government of syria, iran getting further entrenched and involved, nonstate actors such as hezbollah, you've got the u.s. acting and supporting certain elements whether chan destinly or a little more openly in going after isis, has that exposed gaps in public international law, or has it highlighted countering interpretations of public international law? thank you. > three great questions to close on. court one.criminal we had the reciprocity and
7:49 am
deterrence one. and we have the implications of syria. we want to just go right down the panel and start with dave -- actually let's start with you ambassador. we will go down the panel and respond to each. syria,he question of that is a terrific question. it is also, if you look at syria on one hand and ukraine on the other, in the case of syria, the inner -- under international law, the u.s. government position -- in the absence of a security council authorization under chapter seven, and the absence of a basis of collective self-defense or consent of the government, there is not a basis for -- under international law for using military force their -- there, absent other circumstances. that is pretty well established. there are some significant limitations. i think that is a good example
7:50 am
of how, notwithstanding those clear lines, the united states has found ways to the involved in trying to achieve its objectives. but, there are reciprocity implications, for example, in deciding if there is a force basis. the debate on humanitarian intervention. what if we sort of decide to adopt, because we claim international law as a basis for acting in syria, what can we say of we're going to use force in another state, whether through cyber means or through use of autonomous robots? you can see how suddenly the stability of international legal systems is really a question. whenever a decision is made, i think, about whether to stretch the law and that regard, i think the question is, what is the reciprocity applications of that? and that cuts into deterrence. it is hard to sort of maintain your negative security, if
7:51 am
you're going to suddenly change the law to fit a particular model, and that is one of the main questions with respect to what russia is doing in the ukraine. >> all address the question about the hacker. there are a couple of different ways that the guy could have been a target. i think reciprocity is always a consideration. whenever we do policies of any country, that is one of the reasons why i think states have been reluctant to put up their hands and say that we did this, because they are concerned about the reciprocal bindings of themselves and their actions to rules and they do not know where they want those rules to be. in this case, presumably the united dates decided that this guy was a member of an organized armed group, or was thickly participating in hostilities, in which case civilians with their production from attack in armed conflict. they must have decided that. the flipside of that for the u.s., most of the cyber teams that have been put together has been uniformed military folks
7:52 am
who have been in armed conflict with targets all the time anyway. the civilians we didn't have to think about whether or not they were directly participating in hostilities as well. we just have to analyze the nature of the action. the question would be, when you are fighting a group like isis, obvious the, is whether or not the application of law has any meaning for them at all? the one.d to answer i'm not familiar with the case that you alluded to. but my reaction would be that countermeasures are an instrument that we use as an instrument of international public law. in the icc, we address it as an divisional criminal response bodies. the question would be whether the fact that something was done as part of a countermeasure can be used as an excuse or as a justification for what has been done. i would have my doubts. but i would have to know the case. at least it is not foreseen
7:53 am
toward -- that, i would wonder if countermeasures would get into the deliberations, because it is purely criminal. to say a word on syria. it also shows -- it shows one of the structural weaknesses you can say of international law, because international law is a moving target, so to speak. it is never set. 2-4 though we have article of the united nations charter, that should indicate when attack we have others, possibly body to protect those humanitarian interventions. humanitarian intervention is an interesting thing. how you could develop international law. others,iew accepted by
7:54 am
and in syria, the united states thresholde a flash -- to show a case of collective -- the interesting thing -- or the interesting question will be whether because it is a new conflict, whether that will be accepted over time? and as you certainly know, the syrian government has now written to letters to the united nations security council, indicating that they disagreed with the bombings. what we will have to see is what inference that will have on the .efense or on the explanation it is an interesting example, how you can agree to develop international law, and the make the point, because we mentioned several times a part of international law. in my view, this is a very different case from the one we were investigating, because this
7:55 am
is a field where you develop international law based on the common consensus. and if, for example, after the intervention, there had been another humanitarian intervention, that would have been widely accepted, we could slowly say as international lawyers, we do have a new standard that's would be an exception to article 2-4. that may be the case one day. -- this isded to something that we would have to look into. technologies and challenges we have to face. whether there are really spots that we cannot develop by law, but that we would really have to sort of legislate to have a common solution for them. thank you very much. >> commenting on this year
7:56 am
question. it is a very important case before not only development of the norm for you may turn intervention, and whether that will be customary international on the day, but also issue of civil and mixed conflict, because that is the you have there. it is exactly what the nicaragua case was. the civil and mixed conflict -- we do in our member what the united states lost and the legal argument. united states argued self-defense. they were coming in and self-defense, because other states were propping up the other government. well, we lost on that argument. so, i have less hope on unwilling and unable, because nicaragua still holds weight in the international committee. here's the challenge for the u.s. government, they have been opposed to the development of customary international law on intervention, repeatedly. you'll notice in any intervention you are talking
7:57 am
about, the leaders of our country will never use that word. they will never use that phrase. there is an important reason, because practice makes custom. the united states has not been ,illing, because of the dangers that when you open up that can of worms, we are concerned about what that means. that there is a humanitarian intervention norm, we do not have any a great interior for under what circumstances once they could do that. and one will be different from another. the united states is in a difficult position. it will not call humanitarian intervention, and some people not like this, but because of this area of the law, and because of the u.s. position, i do believe, when the u.s. makes a political decision to help certain groups of people that are not part of the recognize government, then, because of where the law is, it ought to do it clandestinely. something ais not lot of people will be in favor of, but it is how you reconcile international law without ripping apart.
7:58 am
are creating a president that is dangerous for many. in the same respect, helping people that are suffering. -- ofhe legal threshold genocide -- i do think we lost hope with kosovo. at least international lawyers were excited. we saw hope for the new world order, and that humanitarian intervention was going to prevail. rwanda,had bosnia and and then will have to admit as international lawyers, you're not there. the u.s. -- i'm not speaking for the u.s., i may not even agree to it, but they have been very clear as a policy matter, the norm of humanitarian intervention is not one this country is willing to kind of abide by. the u.s. will still have a heart and take certain actions to help people in need. in libya, as well. i know that is not positive, but. >> on that note, did you have something that you want us to announce?
7:59 am
ok. byhink we will now conclude doing two things, first i will say that i do think that this year saw a change in the nature of international negotiations on the new technologies. we are in a different area where there are more participants from non-western world, from the global world, what everyone a call them. but also, a different level of understanding some of the issues that might come up. so, there has been a lot of discussion about what is the appropriate response -- is it a standing committee, is it a third body committee? the default position is probably going to be another system, only because anything else is too hard. but all of the topics that you have heard here today from this panel i think you can expect to agenda in negotiation the next couple of years. it has been very helpful for me,
8:00 am
please join me and they can our panel. [applause] >> you're watching book tv on c-span2. book tv, television for serious readers. >> this weekend on book t we -- we bring you our coverage, authors talks and panel discussions, race in america. southern culture and more. also this weekend on afterwards, joint special operations command including with washington post dana


info Stream Only

Uploaded by TV Archive on