In this article I propose a new approach to the scholarly debate on the international law of peac... more In this article I propose a new approach to the scholarly debate on the international law of peacetime espionage. The paper first introduces the notion of a "Jus Ad Explorationem", or a right to spy, as a sovereign right within the domaine reserve of States. I contend that the existence of the right finds its underpinning in both historical and contemporary international law. Moreover I argue that by acknowledging spying as an acta jure imperii, a power exclusively granted to sovereign nations, we would finally be able to move away from the paralyzing debate as to the lawfulness of spying and begin drafting meaningful regulations on the way States enjoy their right to spy. The ILSA Quarterly is the official publication of the International Law Students Association, and this work was produced as part of the author's broader role in drafting the compromis for the 2016 Jessup International Law Moot Court Competition. The year's problem was titled "The Case Concer...
Within the theater of modern information warfare there exists a particularly devious, and previou... more Within the theater of modern information warfare there exists a particularly devious, and previously unnamed practice, which existing legal literature has so far mostly ignored. This practice we coin "rabble-rousing": the simultaneous, two-sided amplification of content in support of directly contradictory stances on controversies of national significance. The goal of these operations is to sow mistrust and aggravate divisions within a target populace. The tactic has become an especially potent weapon thanks to the widely present technologies of the cyber age including social media platforms and automated “bot” capabilities. This strategy is distinct both from the injection of “fake news” into public discourse – as it need not involve false information – and from doxing and hacking – as it has no obviously illegal component under domestic law nor does it target a single individual. This paper offers a complete account of rabble-rousing strategies and explores the extent to...
A review of the roles that the rights to privacy and data protection play in regulating wartime m... more A review of the roles that the rights to privacy and data protection play in regulating wartime military operations is long overdue. Literature exploring the use of digital technologies during armed conflict has centered mostly on either the development of lethal autonomous weapon systems or on various techniques in cyber and information warfare. Far more limited attention has been given to other more mundane technologies which wartime deployment could have significant privacy and data protection infringing effects. Indeed the rights did not find any explicit mention, let alone specific protection, in either the Hague Regulations of 1899 and 1907, the Geneva Conventions of 1949, or the Additional Protocols of 1977. Unsurprisingly, the International Committee of the Red Cross (ICRC) Customary IHL database also excludes any real mention of privacy or data protection within the 161 rules it identifies as constituting the common core of humanitarian law binding on all parties to all arm...
The race for military AI is in full swing. Militaries around the world are developing and deployi... more The race for military AI is in full swing. Militaries around the world are developing and deploying various AI applications including tools for the advancement of surveillance, command and control structure, logistics management, and automated decision-making in battle. A review of the roles that the rights to privacy and data protection play in regulating these emerging wartime military technologies is long overdue. This is especially true considering the growing involvement of private technology contractors in these projects, who bring with them not only large sets of structured and unstructured personal data, but also problematic commercial practices as to how to utilize that data. In the process new questions emerge about the ability, let alone desire, of the government to adequately protect international human rights, civil liberties, and digital freedoms in the production of these new technologies. This book chapter addresses the limits of existing IHL and IHRL regulation of A...
Should the normative framework that governs the International Criminal Court’s (ICC) oversight co... more Should the normative framework that governs the International Criminal Court’s (ICC) oversight concerning Preliminary Examinations (PE) undergo a reform? The Chapter seeks to answer this question in the affirmative, making the claim that both self-regulation by the Office of the Prosecutor (OTP) and quality control by the Pre-Trial Chamber (PTC) currently suffer from significant deficiencies, thus failing to reach the optimum point on the scale between absolute prosecutorial discretion and absolute control. The Chapter relies on the 2015 Palestinian referral in order to demonstrate some of these inadequacies. The Chapter first maps out the legal structures and mechanisms that currently regulate the PE stage. The Chapter then proceeds to explore a number of key areas where the OTP has considerable independence, and concerning which sufficient quality control is critical to ensuring the legitimacy of the PE process, and of the Court itself. This review includes an analysis of the pote...
This is a response to Professor Frederic Sourgens’s recent article, The Privacy Principle. In his... more This is a response to Professor Frederic Sourgens’s recent article, The Privacy Principle. In his article Sourgens claims that “existing international law approaches to the protection of global privacy rights face significant hurdles when applied to the digital age of signals intelligence, leading to an apparent normative gap in the law”. He therefore calls for a paradigm shift through the introduction of a “privacy principle” – a “general principle of law protecting the right to privacy". In this response piece I challenge both the existence and value of such a principle arguing that its promotion is thus misguided. Part I offers a brief summary of Sourgens’ key arguments and his legal rationales for them. Part II pushes against the existence of a general privacy principle. This Part challenges both the methodology employed by Sourgens to identify this principle, as well as the practicality of the overall endeavor. Part III makes the case for an extraterritorial right to priva...
In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a futur... more In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a future in which human consciousness is successfully simulated in silico. In this world, individuals can pay to be “uploaded” into a series of competing digital afterlives. When uploaded, human consciousness is converted into data and executable code, which can be edited, reset, throttled, or even deleted depending on each upload’s membership plan and payment status. The show breaks the boundaries between reality and virtual reality, consciousness and artificial intelligence, and even life and afterlife, entangling various legal questions in novel ways. By addressing three of these legal issues, we hope to highlight how science fiction may help launch a more nuanced conversation about what is artificial in artificial intelligence, what is virtual in virtual reality, and what is digital in digital rights. We argue that becoming early adopters of a new reconceptualized language around “us” and “them”, the “self” and the “other,” can perhaps future proof our society from the technological perils that await us.
Many, if not most, international legal scholars share the ominous contention that espionage, as a... more Many, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has become the prevailing orthodoxy. This paper offers a new and innovative legal framework for articulating the law and practice of interstate peacetime espionage operations, relying on a body of moral philosophy and intelligence ethics thus far ignored by legal thinkers. This framework diagnoses the legality of covert intelligence at three distinct temporal stages: before, during, and after. In doing so it follows the traditional paradigms of internation...
In this article I propose a new approach to the scholarly debate on the international law of peac... more In this article I propose a new approach to the scholarly debate on the international law of peacetime espionage. The paper first introduces the notion of a "Jus Ad Explorationem", or a right to spy, as a sovereign right within the domaine reserve of States. I contend that the existence of the right finds its underpinning in both historical and contemporary international law. Moreover I argue that by acknowledging spying as an acta jure imperii, a power exclusively granted to sovereign nations, we would finally be able to move away from the paralyzing debate as to the lawfulness of spying and begin drafting meaningful regulations on the way States enjoy their right to spy. The ILSA Quarterly is the official publication of the International Law Students Association, and this work was produced as part of the author's broader role in drafting the compromis for the 2016 Jessup International Law Moot Court Competition. The year's problem was titled "The Case Concer...
Within the theater of modern information warfare there exists a particularly devious, and previou... more Within the theater of modern information warfare there exists a particularly devious, and previously unnamed practice, which existing legal literature has so far mostly ignored. This practice we coin "rabble-rousing": the simultaneous, two-sided amplification of content in support of directly contradictory stances on controversies of national significance. The goal of these operations is to sow mistrust and aggravate divisions within a target populace. The tactic has become an especially potent weapon thanks to the widely present technologies of the cyber age including social media platforms and automated “bot” capabilities. This strategy is distinct both from the injection of “fake news” into public discourse – as it need not involve false information – and from doxing and hacking – as it has no obviously illegal component under domestic law nor does it target a single individual. This paper offers a complete account of rabble-rousing strategies and explores the extent to...
A review of the roles that the rights to privacy and data protection play in regulating wartime m... more A review of the roles that the rights to privacy and data protection play in regulating wartime military operations is long overdue. Literature exploring the use of digital technologies during armed conflict has centered mostly on either the development of lethal autonomous weapon systems or on various techniques in cyber and information warfare. Far more limited attention has been given to other more mundane technologies which wartime deployment could have significant privacy and data protection infringing effects. Indeed the rights did not find any explicit mention, let alone specific protection, in either the Hague Regulations of 1899 and 1907, the Geneva Conventions of 1949, or the Additional Protocols of 1977. Unsurprisingly, the International Committee of the Red Cross (ICRC) Customary IHL database also excludes any real mention of privacy or data protection within the 161 rules it identifies as constituting the common core of humanitarian law binding on all parties to all arm...
The race for military AI is in full swing. Militaries around the world are developing and deployi... more The race for military AI is in full swing. Militaries around the world are developing and deploying various AI applications including tools for the advancement of surveillance, command and control structure, logistics management, and automated decision-making in battle. A review of the roles that the rights to privacy and data protection play in regulating these emerging wartime military technologies is long overdue. This is especially true considering the growing involvement of private technology contractors in these projects, who bring with them not only large sets of structured and unstructured personal data, but also problematic commercial practices as to how to utilize that data. In the process new questions emerge about the ability, let alone desire, of the government to adequately protect international human rights, civil liberties, and digital freedoms in the production of these new technologies. This book chapter addresses the limits of existing IHL and IHRL regulation of A...
Should the normative framework that governs the International Criminal Court’s (ICC) oversight co... more Should the normative framework that governs the International Criminal Court’s (ICC) oversight concerning Preliminary Examinations (PE) undergo a reform? The Chapter seeks to answer this question in the affirmative, making the claim that both self-regulation by the Office of the Prosecutor (OTP) and quality control by the Pre-Trial Chamber (PTC) currently suffer from significant deficiencies, thus failing to reach the optimum point on the scale between absolute prosecutorial discretion and absolute control. The Chapter relies on the 2015 Palestinian referral in order to demonstrate some of these inadequacies. The Chapter first maps out the legal structures and mechanisms that currently regulate the PE stage. The Chapter then proceeds to explore a number of key areas where the OTP has considerable independence, and concerning which sufficient quality control is critical to ensuring the legitimacy of the PE process, and of the Court itself. This review includes an analysis of the pote...
This is a response to Professor Frederic Sourgens’s recent article, The Privacy Principle. In his... more This is a response to Professor Frederic Sourgens’s recent article, The Privacy Principle. In his article Sourgens claims that “existing international law approaches to the protection of global privacy rights face significant hurdles when applied to the digital age of signals intelligence, leading to an apparent normative gap in the law”. He therefore calls for a paradigm shift through the introduction of a “privacy principle” – a “general principle of law protecting the right to privacy". In this response piece I challenge both the existence and value of such a principle arguing that its promotion is thus misguided. Part I offers a brief summary of Sourgens’ key arguments and his legal rationales for them. Part II pushes against the existence of a general privacy principle. This Part challenges both the methodology employed by Sourgens to identify this principle, as well as the practicality of the overall endeavor. Part III makes the case for an extraterritorial right to priva...
In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a futur... more In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a future in which human consciousness is successfully simulated in silico. In this world, individuals can pay to be “uploaded” into a series of competing digital afterlives. When uploaded, human consciousness is converted into data and executable code, which can be edited, reset, throttled, or even deleted depending on each upload’s membership plan and payment status. The show breaks the boundaries between reality and virtual reality, consciousness and artificial intelligence, and even life and afterlife, entangling various legal questions in novel ways. By addressing three of these legal issues, we hope to highlight how science fiction may help launch a more nuanced conversation about what is artificial in artificial intelligence, what is virtual in virtual reality, and what is digital in digital rights. We argue that becoming early adopters of a new reconceptualized language around “us” and “them”, the “self” and the “other,” can perhaps future proof our society from the technological perils that await us.
Many, if not most, international legal scholars share the ominous contention that espionage, as a... more Many, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has become the prevailing orthodoxy. This paper offers a new and innovative legal framework for articulating the law and practice of interstate peacetime espionage operations, relying on a body of moral philosophy and intelligence ethics thus far ignored by legal thinkers. This framework diagnoses the legality of covert intelligence at three distinct temporal stages: before, during, and after. In doing so it follows the traditional paradigms of internation...
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Papers by Asaf Lubin