The challenges of attributing malicious cyber activity—that is, identifying its authors and provenance with a sufficient degree of certainty—are well documented. This essay focuses on a phenomenon that I call “attribution by indictment.” Since 2014, the United States has issued more than a dozen indictments that implicate four foreign states in malicious cyber activity: China, Iran, Russia, and North Korea. Ten of these indictments were issued in 2018, suggesting that this practice is likely to continue and even intensify in the near term. Attribution by indictment uses domestic criminal law, enforced transnationally, to define and enforce certain norms of state behavior in cyberspace. This essay analyzes the U.S. practice of attribution by indictment as a response to malicious cyber activity.

Attribution of state-sponsored cyberattacks can be difficult, but the significant uptick in attributions in recent years shows that attribution is far from impossible. After several years of only sporadic attributions, Western governments in 2017 began attributing cyberattacks to other governments more frequently and in a more coordinated fashion. But nongovernment actors have more consistently attributed harmful cyber activity to state actors. Although not without risks, these nongovernmental attributions play an important role in the cybersecurity ecosystem. They are often faster and more detailed than governmental attributions, and they fill gaps where governments choose not to attribute. Companies and think tanks have recently proposed centralizing attribution of state-sponsored cyberattacks in a new international entity. Such an institution would require significant start-up time and resources to establish efficacy and credibility. In the meantime, the current system of public-private attributions, decentralized and messy though it is, has some underappreciated virtues—ones that counsel in favor of preserving some multiplicity of attributors even alongside any future attribution entity.

Kristina Daugirdas's important new article prompts two kinds of responses. By providing a sophisticated analysis of the role of reputation in influencing the behavior of international actors, it invites further thoughts about what we might think reputation is and does. By taking a moral position—the UN should do more to reduce sexual abuse by UN-sponsored peacekeepers in conflict zones—she provokes us to consider how to optimize institutional design in light of particular goals. In this essay, I don't quarrel with anything she says. Rather, I will respond to her prompting. I will discuss methodological issues first, then normative ones.

As Kristina Daugirdas points out in her article on the role of reputation in international organizations (IOs), peacekeeping operations include a multitude of actors with varying interests. These actors have competing priorities, which forces IOs to balance the needs of the actors involved in peacekeeping missions. Because IOs often depend on member states as implementing agents, this could cause IOs to suppress their own interests in favor of member states, which could ultimately negatively affect the communities in which the peacekeepers operate. This dynamic is present in UN peacekeeping operations. While Daugirdas seeks to align the incentives of the UN and the states that contribute peacekeepers so as to harness reputation as a force to encourage the good behavior of all involved, I argue that this alignment rarely happens because of IOs’ reliance on member states. Through the dynamics of UN peacekeeping operations, I show that the UN reliance on states to provide police officers and troops suppresses the UN's own interests in favor of the contributing states’ interests. I also identify a carrots and sticks approach to balancing incentives. As Paul Stephan does in his essay for this symposium, I draw on a rational-choice, actor-based theory to identify the mixed motives of the various actors who staff and operate peacekeeping missions. The framework proposed here, I contend, provides a way to better understand the sources of the tension that exist when evaluating reputation as a disciplinary tool for IOs.

In her recent article on the reputation of international organizations (IOs), Kristina Daugirdas concludes that reputation's constraining effect has some serious shortcomings in the context of sexual exploitation and abuse (SEA). This essay extends those conclusions to recent mass torts cases against IOs. In particular, it argues that member states and IOs have independent and overlapping concerns that have contributed to devaluing the relevance of a “good reputation,” particularly when it comes to providing compensation for wrongful conduct. IOs, it seems, do not want to develop a reputation for deep pockets. Nonetheless, this essay also demonstrates that when compensation is not at issue, there are instances in which reputation matters to IOs. It concludes by discussing recent cases related to responsibility and organizational immunities and suggests that the trend of narrowing immunities may change the reputational calculus for IOs and member states significantly.

Kristina Daugirdas offers a different vantage point from most scholarship on the accountability of international organizations (IOs) by examining whether a focus on reputation can address accountability deficits. In this regard, reputational concerns could pressure international organizations to act by, for example, waiving immunity. In this essay, I explore the relationship between reputation and accountability through the prism of new technologies. Koettl, Murray, and Dubberley highlight four technological developments—“satellite imagery, camera-enabled portable phones, digital social networks and publicly accessible data”—that underpin “human rights investigations in the digital age.” This essay focuses on two of these technologies in particular: the use of new technologies to capture voice and image recordings of potential violations and the role of social media in amplifying allegations. I suggest that they can open routes to accountability in three ways. First, they expose and document claims of wrongdoing. Second, they provide corroborating evidence and thereby encourage victims to come forward. Third, they amplify claims and build public pressure and campaigns for accountability through social media. All three routes, individually or collectively, may lead to direct accountability as well as a structural analysis of how to prevent violations in the future. I then identify the factors that may elevate or reduce the levels by which an IO deems its reputation to be at risk and therefore responds, rather than deciding to “ride out” damage stemming from allegations of wrongdoing and a failure to act on them.

Our contribution to this symposium speaks to the origins of international organization (IO) reputation. The one explored by Daugirdas is agency slack: when people delegated power and authority within an organization—in her example, UN peacekeepers and their surrounding bureaucracy—abuse their privilege and stain the institution's character. We explore another that can spark similar reactions and consequences, but which emanates from the behavior of the principals themselves (rather than their agents): the member states. The company an IO keeps—how members behave—can bolster or stain the organization's reputation. That in turn can have consequences, especially for organizations seeking to provide a venue for members to make credible commitments.

The video opens with a man—now known to be Commander Al-Werfalli of the elite Libyan Special Forces team al Saiqa—throwing a quick glance over his shoulder as a black SUV rolls off camera. Cradling a gun, he saunters towards three men kneeling on a sidewalk, hands bound behind their backs, faces turned toward the wall. He raises the gun in his left hand. Without pausing, he walks methodically down the row, a bullet punctuating every other step. The men slump forward as they fall. Werfalli's first hint of emotion is visible only when he unloads multiple bullets into the final body.

In its August 2018 report on violence against Rohingya and other minorities in Myanmar, the Fact Finding Mission of the Office of the High Commissioner for Human Rights noted that “the role of social media [was] significant” in fueling the atrocities. Over the course of more than four hundred pages, the report documented how Facebook was used to spread misinformation, hate speech, and incitement to violence in the lead-up to and during the violence in Myanmar. Concluding that there were reasonable grounds to believe that genocide was perpetrated against the Rohingya, the report indicated that “the Mission has no doubt that the prevalence of hate speech,” both offline and online, “contributed to increased tension and a climate in which individuals and groups may become more receptive to incitement.” The experience in Myanmar demonstrates the increasing role that social media plays in the commission of atrocities, prompting suggestions that social media companies should operate according to a human rights framework.

Journalists have traditionally played a crucial role in building public pressure on government officials to uphold their legal obligations under the 1948 UN Convention on the Prevention and Punishment of Genocide. But over the past twenty years there has been radical change in the media landscape: foreign bureaus have been shuttered, young freelance journalists have taken over some of the work traditionally done by experienced foreign correspondents, and, more recently, the advent of social media has enabled people in conflict-affected areas to tell their own stories to the world. This essay assesses the impact of these changes on atrocity prevention across the different stages of the policy process. It concludes that the new media landscape is comparatively poorly equipped to raise an early warning alarm in a way that will spur preventive action, but that it is well-positioned to sustain attention to ongoing atrocities. Unfortunately, such later stages of a crisis generally provide the most limited policy options for civilian protection.

When a Trial Chamber of the International Criminal Court (ICC) dismissed the court's very first case before trial, it made headlines worldwide. The Trial Chamber dismissed the case because the prosecutor repeatedly failed to disclose exculpatory evidence. He did so because he had obtained the evidence from the UN and NGOs pursuant to confidentiality agreements that prevented disclosure without permission, which the UN and NGOs had not granted. The prosecutor, stuck between two competing obligations—the disclosure obligation that he owed the accused and the confidentiality obligation that he owed the UN—adhered to the latter, a decision that the Trial Chamber deemed to “rupture” the trial process to such a degree that a fair trial was impossible.

The doctrine of “responsibility to protect” obliges all states to protect populations from “atrocity crimes”—namely, genocide, war crimes, crimes against humanity, and ethnic cleansing—under three “pillars” of protection. Pillar One requires a state to protect its own population from atrocity crimes. Pillar Two obliges the international community to help states to exercise this responsibility through diplomatic, humanitarian, and other peaceful means. When both of these approaches fail, states must pursue a “Pillar Three” strategy: the UN Security Council must “take collective action, in a timely and decisive manner.”

This essay outlines a quandary facing international investment dispute settlement (IIDS): the tension between the wish to curb “dual hatting” and the wish to increase the diversity of those appointed as arbitrators in IIDS cases. Thoughtful observers are concerned by the effect on IIDS, either in fact or as a matter of appearance, of lawyers who wear “dual hats”—one as arbitrator in IIDS cases, and a second as counsel representing clients in other IIDS matters. Concurrently, other thoughtful observers are concerned that appointments to IIDS predominantly go to a small cadre of established arbitrators caricatured as “pale, male and stale.” This concern has prompted efforts to increase the pool of female and minority arbitrators. However, these individuals would be drawn primarily from the ranks of younger practicing lawyers who must continue to practice unless and until they receive sufficient appointments to make full-time service as arbitrators economically feasible.

This essay considers the ethical implications of arbitrator resignations. The resignation of an arbitrator “can severely disrupt an arbitration, particularly if it occurs at a late stage of the proceedings” and can cause “delays and significantly increased expense” resulting from replacement efforts, possible suspension of proceedings, and even the repetition of hearings. Given its potential impact on the parties and the arbitrator's own liability and reputation, “resigning from office is a serious decision, and should never be taken lightly.” Ethical issues connected with resignation have traditionally been given less prominence than discussion of conflicts and challenges, but should not be overlooked in any new endeavors aimed at developing a code of conduct for international arbitration.

Ethics plays a crucial role in international adjudication, in particular in the context of international criminal proceedings where the liberty of the accused is at stake. Criminal courts have been trying to create an “international judicial culture” based on shared ethical standards. In doing so, however, they are constantly faced with an obstacle inherent in the very idea of ethics: the impossibility of defining what constitutes “ethical conduct” divorced from one's culture, tradition, legal system, or professional background. This contribution intends to explore the complexity of trying to define the contours of ethical standards in international criminal proceedings, in particular in the absence of precise written rules, by focusing on the Furundžija case. Even when rules are codified, however, they often remain open to divergent interpretations depending on one's cultural, social, and legal background. Ultimately, it is not simply a matter of codifying ethical rules but, more importantly, of agreeing on “whose ethics” these rules should reflect.

Individuals appearing before the ICJ on behalf of states are not subject under international law to any compulsory code of conduct to guide them in navigating issues of professional ethics. Article 42(2) of the ICJ Statute merely provides that parties “may have the assistance of counsel or advocates before the Court” and does not impose qualification requirements on those a state elects to appear on its behalf. In practice, legal teams appearing before the Court are comprised of individuals from different legal backgrounds who are either qualified legal practitioners or academics (referred to below as “counsel”). Qualified practitioners will likely be subject to professional codes of conduct applicable to them in their home jurisdiction, and those codes of conduct may bind them in relation to proceedings before the ICJ. But the professional obligations applying to practitioners from different jurisdictions can vary considerably. Some may consider that their domestic code of conduct does not (and/or should not) bind counsel before an international court. Those who are academics or are not admitted in any jurisdiction may not be subject to any conduct rules when acting as counsel. The absence of a common set of professional obligations means that the obligations bearing upon the conduct of particular counsel are unclear and certainly not uniform. This may have an impact on the presentation of a case before the Court, and in turn on the Court's understanding of the dispute. Ultimately, it could materially impact the outcome of a case.

The issue of conflicts of interests has for a long time only been mentioned in passing in relation to recusals of international judges or arbitrators. It now attracts increasing attention, which has two facets. The first one is of normalcy: the exponential growth of international adjudication over the last three decades has turned issues that were previously rather marginal—with few rules, mostly self-regulation, and little institutionalization—into systemic issues. The other dimension is pathological: the feeling that the issue is not properly addressed contributes to the climate of mistrust around international adjudication. More generally, the topic of conflicts of interests turns out to be constantly torn between opposite poles, such as integrity versus quality. These dialectic tensions, which challenge the concept of what makes a good judge or arbitrator, pervade the perception of conflicts of interests as well as their identification and management. Conflicts of interests are an inherently ambiguous issue and exist in a gray zone. The complexity of this phenomenon requires both fine-tuned and rigorous regulation through the use of an array of tools and reforms.