tv Key Capitol Hill Hearings CSPAN April 1, 2016 10:00am-12:01pm EDT
conservative. mr. cruz is the biggest liar in either party running for president. it looks like a duplication of what he did in iowa. i will tell you something, donald trump is probably the savior of the united states of america. host: that is going to have to be the last word because we are out of time. washington journal will be back tomorrow morning at 7 a.m. have a great friday. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]
>> good morning. moreis going to be edifying and a more settled event here at brookings in comparison to the one we had yesterday. i see a couple of heads nodding around here. we were honored by having the president of turkey here and not so honored by having some very vigorous protests outside massachusetts avenue. today we are going to step back more angry and fear driven issues of the day and look at the world from the standpoint of international law. let me say a couple of words about the origin of the stephen
breyer lecture. is associate justice himself a friend of this institution. he is a friend of many of us who work here. he is certainly a friend and admirer of our lecture today. various connections with brookings, including writing his first book under the imprint of the institution. we had events for him under his recent books. in 2014. the institution entered into a partnership with the hank institute. we decided to work together on
an annual lecture, followed by a discussion of the sort that we are going to have today. theill come back to institute, which is represented here. i know my own personal background with harold, to say a few things about him. pleasure ofstinct working with him in government during the clinton administration. when he was the assistant secretary of state for democracy and human rights. there were challenges on virtually every continent on the's issues. harold was not just a thought just somebodyt
who brings the discipline of his profession to diplomacy, but he was very much an activist and a superb the mat. superb diplomat. making sure that human rights is a key part of american foreign-policy agenda has not always been an easy task and an edc -- and an easy challenge. when the clinton administration ended, my late wife and i ended up in new haven, connecticut. nobody was more helpful, hospitable, and a better mentor during the academic year than what we spent at yale.
i will always be grateful to him and his wife and family for taking care of us then. he has beennow active again in government, in the state department. he has returned to yale where he is a professor of international law. hard to imagine somebody more suitable to the topic today and also to the time we are living in. after harold speaks to you, she is going to be joined by anhelle, the president of -- acronym that makes it clear what it is all about.
to thank justice breyer for getting his name to this lecture. it is an honor to be able to use his name. also want to thank brookings for its hospitality. i want to congratulate you on your centennial. brookings1916 one created this first independent to a fact-based study of public policy. that is so needed in these days. abby williams, who has -- will be our skilled moderator today.
the minister has decided to stay -- and the many questions that in the be answered run-up to the debate next week. we regret very much he is not here. as a politician i understand fully why he stayed. the brookings institute's most influential and most expressive think tank in the world. place and the time to discuss crucial matters together. thisnk it is excellent meeting is hosted by the institute of global justice. our mayor and former secretary of state served as the founding father and founding mother of the institute. earlier this year our mayor had a conversation with mr. ban
ki-moon. during this meeting they are promoting u.s. sustainable growth for justice and strong institutions. he -- they are internationally loan -- internationally known. we see opportunities for development. therefore we can operate during international law. these days there is much interest in the development and field of cyber security. this is exactly what it can contravene it. -- we are gate with
the gateway to europe. regional, national, and international. the message these days is very straightforward. if everyone stays inside their own safety environment, no innovation is possible. but if you have your own organizations fans, you can come up with solutions no one would ever think of. the topic of the justice lecture on international law is the emerging law of 21st century war, a subject that really matters. i could mention the recent atrocities in brussels and turkey.
the continued strife and unrest in the middle east. this is time for new insight and time for new initiatives. there is only one way to emerge from these crisis is -- from these crises. national and international. the delta already has a wealth of knowledge in this field of cyber security. they promise many benefits. an incredible amount of digital information available to us. humanity or peace can be used to avert conflicts. but digitalization brings new problems with it as well. critical infrastructure comes
under pressure if criminals can take control of it. we need new international regulations and laws in this digital world. wether question is how do attacked digital privacy? there are many more questions popping up with respect to this topic. the emerging law. let's hear the vision. bookings can help a spring our very best qualities. and we will need to do that to get closer to a safer world. i wish you a very -- very pleasant lecture. thank you so much. [applause]
>> thank you to the sponsoring institution. we have had such wonderful cooperation over the years. the city, which i have visited and admired for decades in the institute for global justice, it honor to be here to deliver this lecture. an international law of professor for 25 years as a human rights lawyer. in each of these capacities i have had the great honor to work justice learn from
stephen breyer, who is our great trans-nationalist justice. two -- andgle out former president william howard founders of the society of international law almost 100 years ago. his opinion has sought to give decent respect to the opinions of mankind, that the declaration of independence originally mandated. if there is a core idea that drives his jurisprudence, it is this. there is a transnational public androoted in shared norms every national system, for example the idea of degrading
treatment, civil society, eternally misplaced, and the ofging -- the emerging law border trafficking. i want to talk about the emerging law of 21st century war, which has been the most discussed and least understood. i am going to pay special ,ribute to my friend and mentor with whom we had worked together during the clinton administration. when we got to the in september 2001, one of the first discussions at nine was about whether this would be a situation whether law would be abandoned. would be modified to a dress the whole range of emerging problems.
which i commitment, very much shared, the law might change but we would not enter what you would call a law free zone. emerged.ury law has a cyber conflict, jones, private security contractors, facing a discussion about a taunus robots. people ask the question, what are the rules? what are the emerging laws of the 21st century? there are two competing notions. a notion put forward by some is that we are in a law free zone, that because these technologies did not exist previously there is no law to apply, or there is a world of legal lack holes.
places like guantanamo and tribunals like military commissions. the other view, which i think has prevailed, is the notion the we are translating spirit of the laws to a present-day situation. this translation exercise occurs, in particular because the domestic and international legislative systems are in stalemate. applied.a lot to be this lot derives from the spirit of the law that governed 20th century and 19th century it takes aeed reflection to see there is a big difference between a black hole and a translation exercise.
exercise youion -- there isdebate no doubt within the framework of the law, not to nine application of the law altogether. the body of law has emerged. , which is transnational he assured -- which is transnational he -- which is ly.ured transnational this is a simplistic idea set forward by media. we suggest to six ways in which there are crucial disturbances -- crucial differences. this administration does not speak on the global war on terror, but the notion that their military operations against terrorist networks that
are constrained by international to stateiple's is sovereignty. second under domestic law that we do not operate under numerate did cost of two shall powers of the president alone, but on congressional authorizations, plus constitutional power. law,ter of international these to mystic are informed by the laws of war. mistake that should -- these toic domestic are informed by the laws of war. what may be appropriate for an isileader in syria -- leader may change to a law enforcement approach is that isa leader is found in brussels. do not operate based on labels, calling somebody an
enemy combatant does not serve anything against that person. inquiryit is a back about who the individuals are being subject to military action. commitment absolute to treatment. are important differences and they will fit into what i would say is a broader obama administration legal theory, of an integrated targeting and attention approach as part of a general strategy of smart power. you heard this from the administration repeatedly, a notion that tired things should attention should be legally authorized.
i know that my colleagues would say more about this in the discussion session. particularly now in the court statute, which addresses genocide, the crime of aggression. the laws of armed conflict are sometimes known as international humanitarian law. what does it mean to be in an fighting with an organized armed group, which have a particular nature intensity and scope.
and that armed conflict can be an international armed conflict as declared by either the state or the international committee of the red cross. with two kinds of armed conflict, the u.s. versus germany. a non-international conflict of ae type we saw in columbia, civil conflict. what we see is the emergence of a another -- of another kind of conflict. it was justice breyer among asers in 2006 identified this kind of non-international armed conflict. with al qaedar and the telegram, associated forces.
this is part of those associated forces, the key being belligerence and entering the fight against united states among other armed groups. active theaters of afghanistan, iraq, and syria, russia has been invited by assad. what law must the u.s. follow? and the traditional laws of war, , and the lawr during wartime under domestic law following the constitution. which brings us to what has been the position of the u.s. government since the second half of the bush administration. in response to the 9/11 attacks
and subsequent attacks. and that the congress has authorized appropriate and necessary uses of force through a statute of response. this raises several issues, what constitutes valid armed conflict, whether you are acting in individual and self-defense. uses force ontate its territory or demonstrating itself to be unwilling or unable to suppress the threat. is the raidexample on osama bin laden. is between force civilians and military.
when you hear people talk about carpet bombing, it is illegal. select ofhe notion of carpet bombing. the carmen article, the pool of humanity says there shall be no violence. senses without due process. inthe additional protocol which they are treated as customary international law amplifies these guarantees. i recall a meeting with the
me,tor, who said to professor -- and by the way in the beltway professors not a term of respect. i said last time i check they haven't signed the whaling convention. contract, notout about a bilateral agreement, it is about our minimal standards of humane treatment. and it contains a notion in which the u.s. is respected under key provisions, no access of violence, spreading terror among the civilian population, making the sand below. you will hear some say we should proceed to waterboarding or a
lot worse than waterboarding. unfortunately that is illegal, and if the president has taken an oath they will uphold constitutional laws of the united states. convention says justification may not be justified by a thread of war. and that all axis torture, whether it can occur, must be criminalized. policy mccain made the point. i will urge you to read the book, why torture doesn't work. the professor of experimental put simply, at a cellular logical level it does --
this brings us to the international part of justice that has said the international covenant does not cease in times of war and there is not been in and that thetion court must take account of both international human rights law and international humanitarian law. so we apply the provision by provision of approach. there is some human rights provision that may be impractical at time of four, for example, elections, but others the right to be free of torture and cruel treatment cannot be relaxed. charlie savage of "the new york times" in his new book "power this which i was advisor, a as legal
memo, which said i did not think it was legally available for policymakers to claim the applye convention did not outside of the united states, and in 2015, the administration had the assistant secretary for human rights and the torture ban applies in all places and at all times with no exceptions. my successor as legal advisor echoed the same notion. that is the law of interrogation . what about pretension? increasingly, as the president made in dispute seven years ago, civilian trials are preferred and military should comply with the constitution. transfers from guantanamo continue and as of yesterday, of the 91, 17 will soon depart. hoping to leave the number at 45 by the end of the summer.
it is on periodic review. and the national defense authorization act has an absolute statutory agreement of humane treatment. i often ask, how can you defend drones? -- answer is quite simple all torture is illegal. the president cannot be torturer and chief. this is an absolute ban in all circumstances. ironically, killing in warfare can be lawful if it is done according to the laws of four. you may not like it, but if you are a lawyer in the government, it is your inescapable duty to draw the line between uses of force that our or are not lawful. an armed conflict, we can engage in certain kinds of lawful, lethal warfare. for example, targeting killing
can be lawful when conducted against someone nodding government custody as self-defense or part of an armed conflict if that person has no immunity under the geneva conventions and can indeed, as the supreme court suggested, be more consistent with human right norms as the lower possibility of collateral damage. what makes targeted killing lawful is that the action is authorized, that the person targeted' is writes have been considered and the rights of the sovereignty of the country have been respected. if done correctly, it is not extrajudicial killing, and execution, and assassination and it can be carried out by special operations as in the case of osama bin laden or drones. that drones may be lawfully used for targeted operations. there are some weapons that are inherently illegal.
landmines,apons and cluster bombs, but not drones. how they are used determines whether or not they are lawful. .ake this thought experiment suppose that after congress had authorized the use of military force, if the president, who has been the person at the time who wronged the popular vote and ,aid the following -- yesterday a week ago, we were attacked, 3000 innocent people were killed . we will have to respond. here is what i will not do. i will not torture anyone, i will not open guantanamo, i will not invade iraq, i will not conduct kidnappings or extraordinary rendition, i will not followed people's rights by surveillance, i will cooperate with their allies with apparent fashion, but is the only place i can find bin laden and his
supporters is in a cave in bora bora, and only way to reach them is by drone, i will use that lawful method. please, support me. fodder under the -- a lot of water under the dam since that speech is not made, but when it tells you is that the drones are not illegal, but the other way in which things have been conducted that have opened a cloud over us, so much of what u.s. has done through 2001. upon takingama office made clear that his goal in timesey law, even of armed conflict. he said this in his nobel prize speech. at the national defense university in may 2013, he emphasized a smart power approach that included drones as an effective discriminate tool to help dismantle specific
networks that threaten the clear states, and he made his process for capture overkill, respect for state sovereignty, the notion that self-defense can include the notion of continuing development or elongated imminence of someone who clearly was againsted to strike senior operational leaders, so long there is in their certainty of the civilian presence. these are policy bulls. they are presidential policy guidance. i hope they could be an body into executive order, but to my mind, these rules are consistent with the laws of four. if you translate them -- laws of war. if you translate them into conduct an internalized them into private contract, they could govern private security contractors, as has been done with other documents. what about robots?
the law of war does not yet treat economist robots as a per se illegal instrument. semi-autonomous robots have human beings in the loop and can be programmed to operate under the same set of principles or the operators can use the same set of principles as they do speech, and it is clear that fully economist robots, which engage target independent of oran int interference orders, think arnold schwarzenegger in "the terminator" and not as governor of california, if they entered the zone of per se illegal weapons. what about cyber intrusions? this is a difficult area we will discuss further. we need to discuss cyber espionage,defense, hacking, which can be done by private parties, network exportation, a form of intelligence, and network
attack, which can have broader is ago consequences. for example, using the computer to open a dam, shutting down the hospital is no different than bombing the dam were bombing the hospital. command in 2005, i gave a speech called the 10 rules of cyber conflict, which maker that international conflict applies in cyber space. it can be used with force and applyws of use umbrella -- and the laws apply. a series of legal experts in an exercise have elaborated this. we need to translate the laws of war to make it even clearer that cyberspace is not a law free zone to incorporate government standard-setting exercises into other exercises and to promise
great fees due to the bad -- and to promulgate these through diplomatic negotiation. finally, we end with syria. the tragic story you all know. war, the violations in armed conflicts, the migrants, the border closings, the discrimination against those who are feared to be isil, 250,000 plus dead, 5 million refugees, 7 million misplaced, 2 million of those children, like this poor infant. president obama suggested that the approach here, this is the last state of the union speech a a smart power is approach to conflict like syria. one of the issues being raised over and over is whether it is lawful to enter syrian territory.
raised earlier in the administration, is it lawful to support syrian rebels? as, one of the questions, they remain divided and as refugees flocked to the border between aleppo and turkey, is it possible to give them some sort of humanitarian protection? some claim the u.n. charter is absolute, that it is a violation of sovereignty to enter. i think it is the moment to question this, as we did in cozumel itself. if this were to, any member of the five could create genocide against their own citizens and veto security council resolutions and no one could do anything about it, and maybe someone could explain to me how that is consistent with the values of the u.n., including human rights. some thought it illegal, but legitimate.
i consider this a copout. --the canadian commission the security council fails to charge the responsibilities and they will not other forms of action. in his nobel lecture, president obama made clear that he believed use of force for humanitarian grounds, as in the balkans, can be justified. it is not clear it is lawful that it was always be done, and he is concluded different regards with syria. i do think we need to question the notion of illegal but legitimate as the ending point. did we say that same-sex marriage is legal but legitimate? what did remove to make it lawful -- or do we moved to make it lawful? it seems clear to me that in the black leather around -- letter realm, the rules that seem to be absolutist, and i related more
with the late justice scalia, it is in action in the face. it is the finding and their responsibility to protect in the name of human rights. this suggests this particular test that when you have disruptive consequences like the lead to imminent threats and security and other remedies have been exhausted, humanitarian use of forces limited in necessary and proportionate. illegal meansvent like chemical weapons to be used for illegal pins like war crimes . the use of force in these circumstances is legally justified. you can analogize it to the good samaritan terry in principle in tart law -- good samaritan principle in tart law. if they do, they hold of exempt after-the-fact. you recognize the law but you invoke and informative defense.
i might ask whether this is the task of international lawyers to develop a law in this area in service of human dignity? final point, the living, aggression, eyesight you to an article just published in the journal of international law. engage in leaders humanitarian intervention, they -- can they be charge with aggression? if that were done, wouldn't that the church human rights actions? -- ditch her human rights actions? dissonant perverse to say that the only remedy people have for crimes against humanity are war crimes and genocide and episodic after-the-fact punishment and that there is no remedy of prevention and in the effort to undertake the prevention will be
criminalized. .his cannot be the law lawyers can figure out a better solution. in closing, let me say what i believe. in today's armed conflicts, the laws are not silent, even though the means are mutating, there is an emerging 24th century law of war. it does not follow verbatim from 20th century law, but it is a good faith effort not to have a black coal, but the translate the spirit of those laws to the present day. govern interrogation, special operations, drones, private security council, contractors and the responsibility to protect. our challenge going forward is to clarify the rules, make them more legal, transparent and subject to external oversight. to rememberneed this lecture with one phrase -- we do not have to apply the turner doctrine -- tina turner
that the spirit you know the song, what does law have to do with it? what is law but a sweet old-fashioned notion? growoss of work do not silent because conflict is evolving. call a translated law of 21st century at war. brookings,tribute to the city, and the global justice. thank you. i look forward to the discussion. [applause] [no audio]
>> ladies and gentlemen, welcome to this panel discussion on the emerging war of 20% three war. this panel provides us with an opportunity to delve deeper into this up stance it issues -- this up stance it issues that are outlined in the lecture. it is a great pleasure to be for at brookings and this institution of brookings , particularlyery in washington, and to host the
third annual justice lecture on international law. stimulating and thought-provoking lecture. we hope through this series to talk about pressing questions of and look atl law behavior-based institutions in the process. there is little dispute that the efforts of waging war have changed significantly in the laws governing the conduct of modern warfare. the nature of armed conflict has also changed significantly since 1949eneva convention of and there are additional protocols to draft with modern warfare that this increasingly spreading easily across national borders.
even though they have different understanding of how to interpret and apply the laws of for 10 new means and methods we fit in, sometimes, the same theater of operation. an understanding of the emerging law of force in the 21st century and it is imperative in order to facilitate more coherent responses to the multiple crise with global security. usare fortunate to have with to distinguish panelists will discuss the emerging law enforce and challenges of compliance. parking up speaker, harold koh, a professor of international law ofyale, and the president euro just, michelle. i will begin by posing a series of questions to our panelists
and that is approximately 35 minutes. i will open up the discussion to the audience. harold koh. with while there is broad agreement asked tohe u.s. and eu the importance of a rule-based approach to water, are there significant differences in how they interpret key elements of international humanitarian law? allies differences among in interpreting the law of war undermined the possibility of complementary, coordinated and ultimately effective action? : first of all, i think there is widespread agreement. the agreement far outweighs the
disagreement and will probably continue to do so. exercise is increasingly becoming active in europe, which by the way, i think lends itself to the notion of greater collective standards. it is high time for an agreed statement of principles, high time for public discussion of the assured principles. but i think are the two main points of disagreement that have emerged is on what happens when a state has not explicitly consented to a military action on its soil? to what extent can you invoke the notion of unwilling or unable as a proxy for state consent? for example, if you have a knows the nato legal action will take place on its soil, they will not protest, but neither will they come out
and explicitly say, we agree. at what point is that unable current willing approach is sufficient to give the state consent necessary to overcome state sovereignty? we see this lack of clarity in syria, where there is an absurd situation where assad has consulted for the russians to participate. assad is silent on the u.s. using force against isil, but assad will not consent for the u.s. to provide assistance inside syria, so the notion of state consent has one part to overcome and it is in regards to the single most pressing humanirian need, and it is being treated as if it is some kind of conservation. the main difference is self-defense. , correctly, iut
think, that the original notion of self-defense is against an imminent attack. if you have lots of imminent attacks coming he should be in the state of armed conflict and not through p stated self-defense. what has become clear over time is that when there are groups that are plant -- constantly planning attacks, you do not have to wait until the next attack is about to be implemented to act against it very for example, if al qaeda attacks against the united states by throwing flames of the towers, printer cartridge bombs, , thebombs, underwear bombs last mode of delivery will change, which means that you must be able to have some ability to respond in self-defense before that ultimate moment. the question is, how far can you go before the notion of imminent self-defense is lost and becomes preemptive self-defense?
the notion that the ministrations has used, and the own presidential policy continues to collect imminent threat, and that is based on the notion that there are a group of individuals who do nothing but plan attacks, set each attack is continuation of the previous one. that is different from declaring the place where those attacks are occurring with armed conflict. you don't declare brussels a place of armed conflict because there was an attack there. it is being addressed that way now. andet's turn to brussels michelle. your job is to improve corporation and coordination among many states to facilitate the investigation and cross-borderf crimes, including terrorism. at the recent attacks in brussels, what are the
challenges of compliance with international regimes when multiple states are involved? michelle: we talk about terrorist attacks, we talk about the tax which are -- attacks that are organized across the board and there is a difference. attacks, the brussels attacks, and it will not change. that means it is self-evident for ae have to strive national court nation, international coordination, and these are the keywords, stick together, joined the forces, have a common objective infighting terrorists. [indiscernible] is the heart of the activities to bring them
together around terrorism from the networks. , whereling terrorism confronted with national and international laws, conventions, treaties, and it is becoming more and more complex. for instance, if you were to [indiscernible] you might hit questions around international criminal law. or international human rights, so it is extremely important to ise a reflection, and that on the talk basis. this is exactly what we do for every single terrorist attack. employingrdinating or traditional confirmations. the european union has always favored the criminal justice and we just started to of -- [indiscernible]
the madrid bombings, the london network, and we have a and it includes corporation with united states and continues through 2014 where it was the attacked against the museum and 2016, which was a year of a lot and ending with the last attacks, but we have seen in european law, we have someone with the decision in 2002 with months to define for the first and it continues in 2008 and we recruit with training and
public publication and we have also adopted resolution under 2178 and the convention of prevention of terrorism into initiatives taken by the commission. how can we tackle foreign fighters question mark what about traveling and the organization of travel that terrorist fighters? training, these are to be taken into account now and we see that from 2001 we have not any goal but the streamline the legal frame. we will continue to do so.
up on the changes because what this being regulated has to be implemented in the national weight of the member state. conviction, we see what is the impact of the of thent and what extent international humanitarian law and conflict with terrorism laws and then being abducted, and accepted in what has been accepted to be terrorist activity which determines the fences or what is or has to be translated into international humanitarian law, so a follow-up only caught the terrorism convictions for more information. >> there has been a lot of criticism about managing
performanced the delighted the attacks. here is a unique perspective from the president of eurojust and belgian prosecutor, do you think the criticisms are justified? ms. coninsx i think we have to be -- to coninsx: i think we have be critical, to ensure that what happened will not be received by future potential victims, but when it is criticism not based on only in-depth knowledge but based on the true and correct information, it is distracted and that is unacceptable. " diaper attention of policymakers, politicians to focus on what they need to write now. just ask from the attention of policymakers, politicians to poke some of the need to focus on right now.
in july 2015, for instance, they had heard about and was convicted by a brussels tribunal and they were arrest warrants, and it no that a lot of attacks have been aborted. the problem is now, where finding fighters is an immense complex problem. it is not about the world structured terrorist group. isolated and almt terrorist, it is about the movement, which sometimes does is actingt all and it in a terrorist way and it is not
easy to deflect. we have to be looking at all times. and they have to look just once. capable andtes are able to disrupt, think about the action in thet last weeks. they have been able to disrupt terror activity that may otherwise not have been lucky at all. [indiscernible] we are focusing on the greater focus on we cannot who have, on people only a criminal record for terrorism. need to focus on the law. to have this
approach in the state and across the states. spreading the good news [indiscernible] we have started working on this in 2012, when we were first informed about movements in belgium, and weave not left in the movements or opportunities could to continue to work on the approach with 28 different states. will we always beat successful? no. is this to be criticized? no. corporations and coronation within the european union and other partners, including special and private states. erofessor koh: michell
makes an important point that should not be lost. there is a list operating out favor,hat the europeans a law-enforcement approach, and the americans favored the war approach. in fact, that is not t dichotomy. for example, the boston marathon bombings was handled by law enforcement. the belgian situation was handled by law enforcement. the french situation is being handled by law enforcement. nobody argues that that ought to be dealt with by military action , so for example, but it goes to the point about being able and willing. candidate,idential not out of the race, said things like, under the ministrations rules, you can use a drug against someone sitting in a cafe in new york, that is obviously not so.
a person can be detained by law enforcement process, so why would you ever import of war paradigm into that situation? the exact same person, as you know this, after the belgian attacks, secretary carter announced that there had been a drone attack on a senior leader in a place that was inaccessible by other means. where at the same time, law enforcement options occurred in europe and these things go together. it is a combined paradigm. it is not either or. know you deal with issues in keeping the attention of any combatants and warfare. is there any case when compliance of law is adult population with the security
policy? professor koh: i should acknowledge in the audience, we have a legal adviser from the state department, brian, and i'm touched that he is here and we also have the counselor here. he is giving a major speech tonight at the international international law, which is more important than this speech and i encourage you to attend, and it is the job of the state department to ensure we are living up to our international legal commitments without threatening our security situation. certainly believe that these can be reconciled and we work closely with the justice department. ele worksat mich closely with loretta lynch and senior officials from the justice department on international criminal action. these things have all developed over time. it is a multi-philosophy. philosophy.ged
the state passed the counterterrorism office that specializes in counterterrorism you don't just use one tool in a multifaceted problem, you use many tools. there is a point in my presentation that these different tools should be targeted, different things to where they are most effective and can be most clearly conducted in a legal fashion. michele, you mentioned foreign fighters and your methods of the investigation and prosecution, but it is also highlighted that many states may count the difficulties when prosecuting foreign fighters due to the complexity of what is called find their actions as breaches of humanitarian law. how do you these difficulties can be overcome? ms. coninsx: we have seen clear
messages in every single case of trial, left to the tribunals to have, in itself humanitarian law, it is convicted asd then such. one of the cases to refer to is the case for belgium and conviction that took place in february, february 2015, and they confirmed the presence and conviction, where the defense for thewere pleading application of the international humanitarian law and her friends and amongct in syria international conflicts, armed
[indiscernible] that of an armed conflict and that terrorism law is not applicable. they made reference to the so-called arguable 141 businesses with a key exception. this is not terrorism, this is an international humanitarian law. why isn't this being corrected structure that was between the defendant? there are some reason to say that the defendant had the frame and international armed conflicts and they wanted to be or troops seend in an armed conflict during a foreign conflict that they have not the same activity and
activity has to be your terrorist activity. that has been applied i recent , 2013, 2014, 2015, they were being labeled by the defendants as international humanitarian law activities and seen as. terrorist activities. we are monitoring closely these convictions i will have to find two and share them with all the in order tom inspire the prosecutors who do [indiscernible] happening in syria when
it is to establish diplomacy, is not to be seen as an armed activity and armed conflict. it should be seen as [indiscernible] a specificn forcing the exception that they should not be [indiscernible] and that this exception has to be included in the national law. we have made reference to the exception of certain sentences, but the justice believes at all times that it is left up to the prosecutors. it is being discussed in court, but so far, the tribunals are clearnd not in line with the international humanitarian law and that is in an application of
national and international terrorism. harold, you mentioned the responsibility to protect, which was adopted into the u.n. 10 years ago with a lot of expectations. of course, now, it has been facing serious difficulties, particularly within the security council with the divergent views on members. two questions. first, do you think the basis for invoking for action in anda, which was remiss, second, what are the differences being done within the security council regarding the security to protect? professor koh: first of all, lawyers, we talk about whether the option is available, whether it is thoughtful wonder is no
security council resolution to take action under certain circumstances, to prevent great humanitarian suffering. whether it is available is different from when and if you ought to use it. it means the lawyers are not taking the policy option off the table. i really want to make this point explicit. if one country is going to veto every single resolution, do we really believe that russians or any other could commite p-5 genocide against their own citizens and the to all resolutions and the whole world can do nothing forever? could gas true, assad every child in syria tomorrow and hide behind the russian retailer. international law in the name of sovereignty supposedly permits this to happen.
this is not a pro-peace position, it is a pro-father position. we have to emphasize this. it is not an nonintervention position when everyone else has already intervened in syria. the issue came up or has come up in a number of respects. first, can we get humanitarian assistance to groups inside of syria was that violation of international law? secondly, could you arm certain rebels to actively fight in syria? and the third possibility, could forenter syria sovereign to the purpose of creating a humanitarian cell? are calling for that, but some presidential candidates are. that theit seems to me option of mass production of chemical weapons is not taken off the table by lawyers.
people who say that the laws absolutely crystal clear had not address the changes in the law that you described. as i said, the notion is illegal but legitimate and it strikes me as a copout. if you have something you believe to be legitimate, like same-sex marriage, you take the necessary steps to make it lawful. the notion of the good samaritan principle, if someone does it, even if they were not authorized to do it ahead of time, they should not be punished for it by being prosecuted as an international crime. how could it be that someone intervenes to prevent genocide and then there is aggression? sense.kes absolutely no international law, there is a claim of a clarity, absolute clarity of black leather ball that has been up for grabs for many years, and that is what you that- black letter rules have been up for grabs for many
years, and that is what you're describing. that socko to black and white when reality is great. >> -- when reality is grey. choose thatmakers option, that is another question. the legal option, which is to veto under the charter, which the p-5 have, there is a proposal in the move to get members of the u.n. to sign up, abstain from the use and to encourage the p-5 to abstain from these of the veto in the issue. to you think that should be the theforward, to make should veto does not apply and is not an option of being committed? professor koh: the p-5, certain members, will not forsake the
veto, even if every other countries as they should not. we have this spectacle of vladimir putin attacking the u.s. in the fall of 2013 for not respecting sovereignty in syria by threatening an attack with regard to chemical weapons, when he himself i just invaded ukraine. that is the height of hypocrisy, but we should not close legal protections because it is not true. famousgo back to a historic example, during the cuban missile crisis, people presented the option of false set of options, where they do nothing or unilateral strike. the lawyers look to the notion of interdiction or quarantine, and some people argued it was an illegal blockade. international
lawyers criticize that fourth option. now, 50 years later, this is considered the decision-making exercise in progressive developmental of argument that is consistent with other policy, so the law and policy evolved great if there is a message i am trying to convey, we know a difference between an illegal lawfuland one which is and should be made legally available. finally, and i think this is the absolute part, the school creates an institutional bias toward inaction and passive in the that it is not mandated by the rule itself. after all, the purposes of the u.n. arts protect civil rights, so that can it be that sovereignty becomes the number one value in interposition of article 2-4.
it is not true to what they are present in this day and age. if that were true, rwanda would've been illegal, if that were so, stepping in tomorrow if there was broad scale genocide and protected by the veto would be illegal. >> i would like to invite members of the audience to pose questions to the panelists and take questions in sets of three. i asked that you state your name and give your affiliation and keep your questions. so we can get in as many as possible. let's start with the lady in the front. >> thank you. my name is diane with the center for naval analysis, and the question for professor koh, i appreciate your talk very much. i wonder what you think the most the americanng military should be doing right
now in my with what you spoke about? >> the gentleman in the back? >> thank you. peter, retired state department. in the 19th century and 20th century, military aggression was easy to spot, armies moved across borders during my question to you is, what should be the threshold for cyber aggression? and this gentleman. >> thank you for a very good presentation. i am a former state department world bank and intelligence committee person. 9/11,mber vividly after ask the contractor in the world ofk, watching the action both george h.w. bush administration, and i would like to ask professor koh whether he
believes the action of the george h.w. bush administration, -- professor koh: george h.w. bush. mistake, werede a legal or illegal? two are very much. of all,r koh: first several different questions. i think the u.s. military is a critically important i in terms of the geneva conventions. i do not believe that the u.s. military would obey and order tom a civilian commander torture somebody in violation of the geneva conventions because they have internalized those rules. i think you heard some of that, which forced one of the presidential candidates to recant his position and to fall back to saying he would do whatever was lawful or something like that. every time he goes on tv, he recants the recantation. the second point makes the point graphically.
let me put it this way. if i am on my computer in washington, and i am monitoring what is going on in the computer abroad, that is cyber monitoring. it might even be cyber espionage and authorized by covert action laws. determine the networks that are operating our legal and we can copy the files in that becomes computer network , -- exploitation, but if you determine someone is about to use the foreign computer system to destroy a hospital or dam in the united states, you can block it electronically. if you determine at a certain thet that this is widespread offensive intent of the foreign government, let's say the sony hack or something,
you may be in a situati which you do a very broad scale and mobilization of somebody's system. all of this happens within split seconds. be an electronic response to something being detected in what began as simply surveillance. that is what makes it difficult. in the old days, someone offensively moved troops across the border for three days or four days. that is obviously aggression. nowadays, the could happen in less than the blink of an eye and you really don't know. let's be frank about this, there are countries with huge cyber huge asians, countries with huge cyber capabilities, who love for this becauselaw free zone
then, they could do what they can and in the weeks, suffer what they must. the experts made a different decision in response to u.s. and european support, which is that this should be where the gold rules are clarified on exactly this kind of question. the most difficult question being, what if some of you is a up actingr in set directly, in other words, not the government to computer that does it, but it has been put down to someone else. to my former state department colleague, identify in many ways which i believe that the george w. bush administration acted ofegally, or both, and much our time since has been trying to lawful path.
there is a great irony here. roberts the classic professorn you are like i am, you can say a mistake was made back in 2003, if only we had not invaded iraq, and you would be right, and then you would go get another cookie from the faculty lounge. when you're in the government, you are already down the wrong path. you have already gone down the wrong fork, and your job is to move that second path toward where it should be. whilees a long time, and you are on that path, maybe people are saying you are on the right path and you might be like the other guys. the answer is, don't you see we are trying to bend it toward law and justice? we cannot go back. we have to go forward.
point, we are many years past the mistakes, and they were grotesque mystics, but the job now is to get this into a better frame. what i stated here is, let's not buy into this fiction that there are no rules. there are rules. and that's not be confused when there are times in the rules are violated because then you can say, these rules have been violated. but we should also be clear that there are emerging roles that meet these new situations and we are not in a law free zone. michele, maybe you wanted to come in on the cyber-based issue because last you, the netherlands posted the global conference on cyberspace and they are constantly highlighting
the need to explore the development of voluntary, not legally binding laws for responsible state behavior. i wonder whether it undermines international law by offering the less figure is path. maybe you have some thoughts on this? ms. coninsx: i can only guess the perspective on cybercrime with two clarity's in the european union. terrorism and illegal immigrant smuggling is upon the top priorities. on the mind and we have received massive use from the internet and social media, and they could be messages used by terrorists and we see that traffic taking place.
together, with the united different tackling producers. this is part of reality. for them withk the public and private sector in order to see how we can tackle them together and across the borders and across the sections. a lot of attention was given to law enforcement authorities and judicial authorities. is ringing together all the having thes and simulations with the worst-case scenario as part of the exercise
and we have to get them altogether. we know that having defense and expertise benefits from that expertise and benefits from the that has available been set from the previous discussions and the solution might not be found in one way or problemon a specific that reflects a solution, but the solution can be followed in the court operation again. >> let's take another round of the questions. in the front. >> thank you. i am an independent consultant dealing with technology. the question i would like to pose is to take the apple situation and apply it to the eu , or the eu commission is
responsible for establishing regulations as to privacy of the standards. let's assume for a moment that with the spec to what happened in belgium, that an apple phone was critical in terms of detection of what may or may not have happened. how would the eu regulations apply to the apple and apple -belgianuation in the eu tragedy? >> here is the lady. zonesked about law free and i am wondering if that necessity for translation implies some inherent inadequacy of the law and why there is not
an effort to update international law to fit that are with the modern world, and why we are relying on what be an outdated system. or if you disagree and think it is not. >> and then we will go to the back, the gentleman with the red eye. -- read tie. >> my name is david sent me with cs i.s. with the u.s. state and defense department. , you laid out a set of differences between the bush and obama administrations. since i left the u.s. government and in discussions of people not a part of the united states government, there are called signature strikes. an international group did a paper describing these alleged signature strikes, saying there are higher civilian casualties involved in with other such strikes. as you laid out validation under
international law, of most drones, does your justification for those extent of the so-called x signature strikes -- i am not making a statement whether they occurred or not. >> i will start with you maybe on the eu regulation. ms. coninsx: i think there are discussions and the one who should respond to this is the commissioner from justice. is from annow enforcement perspective, is that , enhanceo step up security. to ensure accelerated judicial cooperation between the u.s. and european nation we need action,
reaction, and further reaction. you all know that the service -- that we need access to digital and electronic evidence. this is been something we have been working on and is leading to a successive decision-making at the highest level. i am the one who is going to answer. to our friend from au, there are no law free zones. i did not distinguish between translated zones and law free zones. i said people try to call things law free zones and they are not. i believe in universal human rights and there is no zone in which human rights do not
operate. look at our political environment. we have a congress that cannot legislate, that will not ratify treaties even if they were negotiated through an international process that rarely renegotiate's treaties or updates them to the current situation. and we have a veto system in which certain states have disproportionate and sometimes preclusive power, which means that a formal process of updating rarely occurs. , technologythat moves faster than law. we have to develop these rules through interpretation, and that is what these rules that i laid out were. what i gave you is drawn from lots and lots of different sources, and what i am saying is the fact that someone cannot figure this out does not mean it is a law free zone.
it means they did not figure it out, someone did not lay out clearly enough. someone asked a very good question about that mr. strikes. -- signature strikes. targetednal theory of killing his personality strikes and what you know who the person is, and they are a senior leader of al qaeda, who is attacking you. the paradigm case being osama bin laden. the original notion of a signature strike is, can you strike at someone when you do not know, 100% sure that they are there, but all their signatures are there? in that sense, the raid against bin laden was a signature strike because they did not know 100% he was there. all of his signatures were present. sense, myoriginal
view is that a genuine signature strike in which the signatures are a substitute for correct identification of a legal target, it is lawful. what i think has been troubling is the notion of using the notion, signature strikes are lawful, to suddenly say that a house draped in a particular way that could be al qaeda means that you can attack a house without knowing anybody who is in their. that who is in there. or certain indicia allow you to do a broad attack without any real evidence of who is there. ago, there was an attack on 150 people at an al-shabaab camp. the defense department said we are not at war with al-shabaab, this has to be explained by self-defense. they were coming from a
graduation ceremony to do an attack, but we do not know more than that. al-shabaab war with we should say we are in an armed conflict with al-shabaab, and show that they are interested in fighting the united states as opposed to various internal objectives within africa. with the signature strike, you have to explain why someone there, an individual personality made a target of killing standard and why you believe there is a near certainty of no civilian casualties. again, i'm not saying that the rules have been perfectly applied in every situation. in fact, there may be situations that prove why we need to get these rules even more clearly defined because otherwise the word "signature" could be expanded or misused in a way that people cannot recognize. >> another round of questions. >> thank you. retiredry bass, i am
one of the few nonlawyers in d.c. , war has the war is good thatnd it we have rules of engagement, etc., because i think people should have guidelines and rules. unless you are there and under stress or attack, you will see rules differently than others possibly, of how you have to defend yourself. and nowadays with what is happening with a lot of hiding i.e., we hit a, hospital i think in iraq, that because possibly there was something there but maybe we just made a mistake. gaza with we see missiles being fired and on the other side of that, having to go
back and hit a hospital or school or something that may be hiding those missiles to protect. with hindsight it is easy to sit back and look at things but we see things differently sometimes. we probably would have done something different in syria if we had known 250,000 people would have been killed. areas, buthese gray how do you justify the gray area in all of this with setting up the rules of war where now civilian casualties fortunately happen? 1500nk the drones killed to 2000 innocent civilians. it was recorded in the early obama years, and maybe to have changed some of that. >> thank you. with is a lady in the back a pink outfit. phd candidate at cornell
university, my question is for professor koh. i am interested in how you define international norms in regard to international laws, and you see counterterrorism laws ever reaching the threshold? >> thank you, and the third question, the gentleman, second row. >> thank you. clay roberts, a student at george mason university. special operations, regarding specific incidents. the united states launched a raid into pakistan to kill or capture osama bin laden. the service members were technically under the administrative control of this -- thee pakistani and cia, the pakistani government give permission.
did not protest too loudly or too long, given the shakiness of bin laden's discovery. and bin laden raid anomalous moment that is unlikely to serve as president? does it have implications or is this really yet to be determined? >> thank you. first, the question that was asked by my colleague, i the fog of war is greatly diminished by the internet. internet atave an the cultural resolution, at the bombing of dresden, when they dropped atomic bombs on hiroshima and nagasaki. and thousands of thousands of innocent civilians died. but it was placed under the notion of a fog of war.
now everybody has a cell phone, has a video camera. many of those people have access to the internet. claims can be rebutted but also, claims can be repeated without verification. for example, he said next number of people were killed by drones. the united states has not confirmed or denied those numbers. i know they actually disputed how high the numbers are, so it is worth having some clarification of this point. it seems to be that we are in a period in which is somewhat attack the hospital claiming it is not really a hospital, but is actually a place in which -- it is a disguised attack center, command and control center, we can verify that with modern technology in a way that was not possible before. to my friend from cornell, are you in international relations major or lost it?
-- law student? international relations has the notion of regime theory. peter katzenstein, decision-making procedures underlying a particular area but they do not use the word "law." when those embodied into either treaty or customary international law and become law under the statute of international court of justice, what i'm suggesting is a set of emerging norms that i think should be law. that involves a lawmaking exercise. or simply being asserted as a matter of law rather than as a matter of discretionary policy. finally, when abby asked me at arebeginning what our areas of controversy, unable or unwilling? did pakistan consent to the
raid? or were they simply unable or unwilling to prevent him from attacking the u.s. from islamabad? we do not know. but in that situation, the u.s. done, its essentially seems, with some sort of tacit acceptance by the pakistani government. some people would want more approval, formal approval by the pakistani government. you are unlikely to get it. but as you say, if the pakistani objecting to their sovereignty being invaded, why , and acknowledged leader of al qaeda be in the country where they claim they were not harboring terrorists? that explains why some of these concepts can be stated with some legal precision, but the proof
is in the application which is a lot harder. questions.round of >> it is an honor. thank you guys for coming here today. jordan, a senior at american university studying government. what do you see as the role of the media in this new 21st-century war? >> thank you, good question. >> good morning, my name is dave grasso, a retired special operations leader.
i appreciate your comments about the u.s. military not pursuing actions that are unlawful or constitutional. my professor -- my question would be to you, professor, regarding the authorization of military force. does the current provisions and authorizations to cover future actions on africa against enemies such as boko haram, al-shabaab, and other actions, or is there additional work that needs to be done in terms of assessment, interpretation of the aumf? >> good. >> i like this question very much. we need a proper dialogue with the media impact of incorrect information. that can be devastating on criminal investigations and prosecutions. --etimes mckinley to such sometimes it can lead to
potential risks for future events. media, where everyone becomes a journalist without any frame,, without any where a lot of incorrect or correct information might be disseminated, also having an impact. enforcement units in paris and brussels, operations cannot be hidden from the media any longer and become part of the reality, putting danger on the police, that whiching also should remain out of the eyes of the at large, and give more possibilities for terrorism, new ideas, creative ideas for terrorism in the future. a good dialogue.
what do you need to know? what does society know if this point? >> thank you. michelee media, i think has done a good job. huge human rights enforcement device and i think has done an extraordinary job in evidencing human rights violations. the media hasand, a role to play in holding our leaders accountable and sometimes it has not done a good job. when presidential candidates talk about torturing people, the obvious question is, if you take an oath to be president you swear to uphold the constitution and are you telling me you are planning to violate that immediately? if so, why not let that no now so people can decide if they
want to vote for a president who is going to be an outlaw immediately. they do not ask that question. instead they moved to other things that are more colorful in their own mind, or get better ratings. i think that is their failure. to my colleague who worked on said,l operations, as i the authorization for use of military force is supposed to a dress associated forces which include co-belligerence, armed groups that have entered a conflict against the united states. i do not believe either boko haram or al-shabaab meets those standards. the problem which i know, you understand better than anybody, a congress that refuses to vote on authorization for use of military force. remarkable,te because it is the exact same
congress that accuses other branches of usurping their power. it is their job to authorize force and define who we are fighting against, and they absolutely refuse to do that. they could be too busy doing other things like voting on supreme court , but i guess they are not interested in doing that either. that is too bad. but i think the point that was absolutely critical, i do not know any military unit in the united states government that has ever gone into the field without clarification from their commanders, what are our rules of engagement? part of those rules of engagement are set by the geneva conventions and the laws. , do not know of any commander and we have a large number of extraordinary heroic people who do that, unless it is absolutely clear that they are conducting
things that are consistent with the oath they took when they joined the u.s. military. if we are going to hold soldiers to that standard, we have to hold our commander-in-chief to that dinner. -- to that standard. it would be interesting to know how many of our presidential candidates could give you a recital of the laws under which they are operating. i know one candidate who can tell you essentially 100% of that. not,thers i think could and i think that is what makes her an extraordinary figure. [laughter] >> a final round of questions. police that with human rights first. i do not want to beat a dead thing, but toaumf be fair to congress, there are some members of congress who are trying to push forward senator
aumf senator flake, a new to govern the new conflict that we seem to be in. help when thet president says, i want congress to do this but i do not actually need congress to do it because i have the authority i need under the old aumf. so given the situation with congress and that there is not much progress being made by ne senators trying to push this forward, what do you think the administration can do before it leaves office to at least illuminate what it sees as the constraints on its use of military force? we have had so many hearings where administrative representatives come and are asked, who are we at war with? and they cannot really give an
answer, and that seems to me to be contributed to a lot of the debate that we have about drones and other kinds of issues that would be a lot more clear if there were a meeting of the minds between the american people and government about who we are at war with. >> thank you. my question is, how long prisoners or detainees in guantanamo can be kept? in the past, when the war ended prisoners of war were released shortly thereafter. can people in guantanamo be held as long as we have a contact -- conflict with terrorists? >> final question, the lady. >> my name is jennifer clark. i am a research associate. we talked a little bit about the legality of drone warfare. my question is more about the
efficacy of this strategy and what your impressions are as far as the effectiveness. >> thank you. i think the human rights has done heroic work on trying to get congress to live up to its responsibilities. i think the administration actually has been pretty clear. they believe that under their aumf,retation of the 2001 the administration has the authority to fight isil in addition to al qaeda and the taliban. at thereston last year american society of international meetings said that the list is exhausted. bo boko haram is not on it, al-shabaab is not on it. and they acknowledge that with , there may beaab
some leaders who are members of al qaeda and i think that has been true, there are at least five senior leaders of shabaab who have sworn to al qaeda and this was massively documented. but i think the answer, if you just rely on that, is that they can continue to fight al qaeda. they can continue to fight the taliban. they can continue to fight isil but if they are going to declare a fight against new enemies, they need new authority. doubt the administration -- the administration is not in the business of saying there are people who you might have to fight who we do not have the authority to fight against. if you see what have been the limits of what they have stated, it is absolutely clear. you can hold prisoners until the end of armed conflict, and we
are still in an armed conflict with al qaeda and the taliban. you actually have to demonstrate that those individuals continue to pose a threat, and some people have been held for 13 years, can be reevaluated under the periodic review board, the executive order on periodic review and released. what we see happening now is that the number of 91, they say they are going to drop it by 17 in the next two weeks. you will be down to 45 by the end of the summer. and then we are suddenly in a zone where the question is exactly what is going to happen. the president says he does not want to leave this for the next president, which i hope is true. we will see what happens with regard to guantanamo. my view is it should've been closed a long time ago.
i do not think it makes any sense for the united states to be running an offshore prison camp, particularly claiming it those claims have beenf law. completely rejected by this supreme court -- by the supreme court so it is fully subject to law. we do not want other countries to be opening up their offshore prison camps which they claim are outside the scope of law. that is more legal black hole. guantanamo never should have been opened. there is no reason to bring anybody there, so presidential candidates who say bring people to guantanamo, why on earth would you do that? i am amazed by this. people who are in syria, why on earth would you bring them 90 miles from the united states at a time when we are criticizing the other part of cuba for holding people indefinitely and without due process of law? it is the most ludicrous
suggestion you can imagine. this administration has brought nobody knew to guantanamo so the numbers have been dropping slowly, much more slowly than they should of been. but guantanamo never should've been opened. guantanamo should be closed and once closed, closed forever. >> this has been a fascinating conversation. i would like to thank both our panelists for being with us today, and for the open and stimulating way you have engaged with the audience. please do join me in thanking our panelists. [applause]
been discussing ways to combat nuclear terrorism and other security measures. you can see the president's remarks coming up at 5:45 eastern on c-span. at 7:00, from toronto looking at the global refugee crisis and how the nation should deal with it. former ants include the commissioner for human rights. and u.k. independence party leader nigel for roche, and mark steyn will be arguing against the notion. our road to the white house coverage continues this evening with john kasich and ted cruz speaking at the republican party dinner,ukee's annual and their remarks get underway at 8:30 eastern. thate media teaches us democrats and republicans are supposed to be at odds with each other and i think that people need to recognize that we need
to be respectful towards each other, and we need to understand that senators are respectful toward each other. that will be more conducive to getting real policy done instead of just acrimony and vitriol. >> these people we see on television are real people. when we saw president obama, perhaps the thing that most stood out to me is he had bags under his eyes, he was tired, he is a real person dealing with real things. highnday night on q&a, school students from around the country attending the 54th annual senate youth program talked about their experiences from the weeklong government program, and there plans for the future. they met with the branches of the government, military, and media representatives. >> john capehart came to talk with us and i loved the insight he gave us about kind