Ein Beispiel
In December 2011, a hacker using the nom de guerre “OxOmar” gained access to tens of thousands of Israeli credit card accounts and disclosed information about thousands of them online. In comments he posted, he described himself as a Saudi national, “one of the strongest haters of Israel,” and threatened Israelis: “You are not safe from me and Muslim hackers. We’ll fight all of our lives against Israel, we’ll harm you in any way we can. . . . [L]et’s destroy Israel and have a free Palestine without enemies.” A month later, OxOmar and his friends in a group known as Group-XP hacked the Israeli stock exchange and the El Al national airline, although trading and flights were not affected. The group called the act a “gift to the world for the New Year” designed to “hurt the Zionist pocket.”
At one point, Israeli bloggers suggested that they had identified OxOmar as a nineteen-year-old living in Mexico. OxOmar, for his part, denied living in Mexico. No publicly confirmable information definitely establishes either OxOmar’s identity or his whereabouts, either at the time of the cyberattacks or now. Let us assume, however, that he was, in fact, a Saudi citizen and that he did carry out his attacks while in Mexico.
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Consider the following questions: Which country’s laws should determine whether OxOmar ... committed a crime? Which country has jurisdiction over the case: the one from which the acts were carried out, the one whose nationals were involved, or those countries that suffered the most harm? Does it matter where the attacked servers were physically located for purposes of jurisdiction? Does Mexico or Saudi Arabia ... bear any responsibility, as a state, for the actions of its private citizens? Where national security is presumably implicated, as in the case of OxOmar’s attacks, should the perpetrator be considered a common criminal or, as some Israeli officials suggested, a terrorist, and would that distinction matter? Should a hacker’s ideological motivations for the attack affect the legal response to his actions? If the scale and effect of a cyberattack are large enough, might a hacker be thought of as a belligerent engaged in a use of force? And what could Israel do even if it had managed to successfully track OxOmar down, for instance, in Mexico? Could it arrest him? Could it target him with lethal force? Or could it only request that Mexico extradite him or enforce its own law against him ...?
Neuzeitliche Staatstheorie
These questions all stem from the organizing principle of state sovereignty, which guides the current structure of our international legal system, as well as from the instincts with which we approach questions of legal jurisdiction. They reflect an understanding of the state as existing in a defined territory, with a government that maintains a monopoly on the legitimate use of force within it — that is, the state as social contract theorists such as Thomas Hobbes and John Locke understood it.
Recall that under the terms of the social contract, individuals generally surrender their right to use force to the government, which in turn undertakes to protect them from one another and from what would have been their fates in the state of nature. In addition, the government undertakes to protect its citizens from external threats, often by calling on them to participate in organized defense forces assembled to fend off threats from other states. A political state thus forms through a collective surrender and reallocation of individuals’ power. The state is sovereign in the determination of its own internal affairs, the governance of its territory, and the policing of its citizens. But other states are equally sovereign, so no state has much of a say in how another state governs its affairs within its territory.
This idealized conception of how sovereign states relate to one another, in turn, has given rise to a particular, simplistic, and increasingly problematic way of thinking about law — one built, as legal scholar Philip Bobbitt has noted, around a set of stark, polar opposites, or “antinomies.” In this view, particular actions are either public (acts of a public official such as a police officer) or private (undertaken by individuals or firms), territorial (taking place within a state’s borders) or extraterritorial (taking place outside those borders). Individuals or firms whose activities are subject to regulation are either citizens of the state that seeks to regulate them or aliens. Laws that regulate conduct are either domestic (enacted by a state’s legislature) or international (derived from a negotiated treaty or a binding custom). A violent act is either a crime (a violation of a state’s laws against murder, assault, or some other action) or an act of war (a political act of collective violence).
Rechtsformen
These problems notwithstanding, questions of law, and particularly questions about law pertaining to security and violence, still tend to be framed with reference to sovereignty-driven juxtapositions. These juxtapositions still shape our thinking about who has the power to legislate, adjudicate, and enforce the law. They determine against whom states can apply their own regulations, and they set limits on the sort of conduct that a given state can regulate without antagonizing other states. They also determine what actions a state might take unilaterally and what actions require international cooperation or the consent of other states. In a world of many-to-many threats, in other words, long-established oppositional categories still purport to draw the legal boundaries of the power states can exercise in protecting themselves and their citizens from external threats or from threats whose origins they may not know.
The emergence of the modern, globalized world—marked by unprecedented levels of cross-border activity, the presence of powerful nonstate actors, and notions of international human rights that imagine enforceable limits on the conduct of all states — has massively amplified the difficulties of using these categories to frame principles and practical solutions to contemporary problems. Geographical boundaries matter less for purposes of defense. Citizenship matters less in determining threats. War and crime are becoming harder to distinguish from one another. The difference between the impact that individuals and corporations can have on events and the impact of public officials is diminishing. Overall, sovereignty no longer holds quite the same moral or practical force it once did. All of this presents a major challenge for the future regulation of threats, vulnerabilities, and responses.
Strafgesetzbuch, Kriegsrecht, Menschenrecht
In its pure form, criminal law deals with domestic crimes, those that take place between and among the citizens of the state. It is each Leviathan’s province to protect individuals from the state of nature. It both empowers and constrains the sovereign in dealing with internal threats to orderly life. Because it is an internal matter, traditionally, criminal law has been subject to domestic formulation and enforcement. Some exceptions notwithstanding — for instance, with regard to internationally defined crimes — national legislatures decide what types of behavior to outlaw, how to prosecute transgressors, and what type of sanctions to authorize. Because it is a matter of internal sovereignty, moreover, different states often differ in their criminal law codes, in investigative and trial procedures, and in sentencing those found guilty.
The laws of war, by contrast, are international in origin. They were designed to empower and constrain the sovereign in defending the Leviathan from external (and, later, also internal) threats to its public authority and control. Unlike under domestic criminal law, the primary addressees of the laws of war are not individuals but states and organized armed groups. Historically, the laws of war developed through reciprocal commitments between rival sovereigns and, from the mid-nineteenth century on, through multilateral agreements that all independent states were invited to join. In addition, a host of customary international norms evolved over centuries through consistent state practice and a sense of legal obligation, adding another layer of rules on warfare. The lion’s share of the substantive laws of war — including rules concerning targeting, detention, the treatment of occupied populations, weapons, and other matters — purport to apply equally to all belligerents, even if some countries, including the United States, resist some of the more recent additions to these laws.
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Consider the different stances toward violence taken by criminal law and human rights law, on the one hand, and by the laws of war, on the other. Criminal law starts with the presumption that any violent act between private individuals, absent extraordinary circumstances or justifications, is forbidden and punishable. Only violence sanctioned by the state—mostly, for policing purposes—is lawful, and even then only under the strictest conditions. The laws of war, conversely, accept violence among combatants as lawful, with few limitations. Combatants’ shooting at each other requires no explanation or justification other than the underlying condition of warfare; in fact, the captured soldier, absent evidence of war crimes, is immune from prosecution for acts of violence committed in conflict.
Gewaltklassifikationen
The convergence of these two modes of regulating violence has been driven not only by an ideological concern for the individual but, perhaps more strongly, by the disruption of the categories of violence. That is, the advent of modern forms of violence, especially terrorism but also some transnational crime, has further obfuscated the line between acts of crime and acts of war. The terrorist is not commonly associated with a state, at least not directly, in the sense that a soldier operates as a formal arm of a state; the terrorist either acts alone, as did Anders Behring Breivik of Norway, in which case he looks more like a criminal, or he acts as part of a group or network, like Al-Qaeda, in which case he looks more like a combatant, a member of an organized armed group. His motivations may be political, religious, or ideological, and his victims will tend to be anonymous, targeted for their association with a particular group, as in warfare.
By contrast, the victims of most violent crimes are targeted for reasons related to their individual identity, not their group affiliations — though this is not always the case. Acts of terrorism often inflict few casualties, fewer than those of famous serial killers, but they also sometimes produce mass casualties, thus resembling more the effects of war. When both the attacker and his victims are citizens of the same state — as with the 1995 Oklahoma City bombing by Timothy McVeigh and the 2002 Beltway sniper killings by John Allen Muhammad and Lee Boyd Malvo — the threat to sovereignty remains internal, as with any common domestic crime. But once the terrorist is foreign, and particularly once he operates from a foreign location, the threat takes on a more external, warlike character in its challenge to the state.
Some terrorist acts, such as that of Breivik or the Tsarnaev brothers’ 2013 attack on the Boston Marathon, constitute singular, one-off events; others, such as the September 11, 2001, attack on the World Trade Center and Pentagon, are part of ongoing campaigns of terrorism that have no particular temporal boundaries. All these distinctions can make it difficult to classify acts of terrorism as criminal or belligerent in nature. Consider the shooting spree by Major Nidal Hasan at Fort Hood in 2009, which resulted in the deaths of thirteen people and injury to more than thirty others. While many in the media and politics have referred to the shooting as an act of terrorism, the Department of Defense determined that it was the “criminal act of a single individual.”
The ambiguity of what terrorism is or what it looks like has also led different states to deal with terrorism under different paradigms — as an act of war, a crime, or some mixture of both—depending on their national attitudes toward the use of force and human rights and the types of terrorism they have experienced. Most European countries, in which terrorism has primarily involved homegrown terrorist organizations, commonly perceive terrorism as a crime, a matter to be dealt with using ordinary law enforcement measures. For these countries, a murder is a murder, whether its perpetrator has financial, romantic, or ideological motivations. For the United States, Israel, and a growing number of countries in the Middle East and Africa facing both domestic and foreign terrorists — often on a larger scale than in Europe and often involving the projection of force from beyond the country’s own borders — terrorism also has the features of war. It represents a defiance of state sovereignty with which the state cannot deal solely by means of traditional law enforcement. Instead, the state resorts to the use of armed force as should be governed by the laws of war, in a manner that no civilized society would ever tolerate in ordinary domestic policing.