In an extraordinary and unprecedented move the International Criminal Court today issued a statement confirming what has been in the pipeline for a while, i.e. that Sudanese President Hassan Ahmad al Bashir can be held responsible for genocide and other crimes in Darfur.

ICC Prosecutor Luis Moreno-Ocampo has presented evidence today showing that Sudanese President, Omar Hassan Ahmad AL BASHIR committed the crimes of genocide, crimes against humanity and war crimes in Darfur.

Three years after the Security Council requested him to investigate in Darfur, and based on the evidence collected, the Prosecutor has concluded there are reasonable grounds to believe that Omar Hassan Ahmad AL BASHIR bears criminal responsibility in relation to 10 counts of genocide, crimes against humanity and war crimes.

The Prosecution evidence shows that Al Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity. Members of the three groups, historically influential in Darfur, were challenging the marginalization of the province; they engaged in a rebellion. AL BASHIR failed to defeat the armed movements, so he went after the people. “His motives were largely political. His alibi was a ‘counterinsurgency.’ His intent was genocide ”, the Prosecutor said.

Read the rest of the press release here. The ICC has applied for an arrest warrant [PDF here].

The International Crisis Group broadly welcomes the statement but warns of potential pitfalls in pursuing this action. ICG spin-off Enough also comments on the ICC decision and reminds us of al Bashir’s track record in human rights.

I have two new posts up at CTLab Review:

Mahmoud al-Massad at the Frontline Club - a review of al-Massad’s acclaimed documentary Recycle, in which he returns to Zarqa in Jordan, birthplace of Abu Musab al-Zarqawi and attempts to find out what makes a terrorist.

Monumentalising Defeat - a brief look at Christophe Abrassart’s photographic essay on the WWII Atlantik Wall.

Mike Innes has also been busy, and has has his legal hat on this weekend:

Khadr v. U.S. (D.C. Cir. June 20, 2008) - The D.C. Circuit, in an opinion by Chief Judge Sentelle, has dismissed a petition by Omar Khadr asking the Court to address certain procedural issues relating to Khadr’s war crime trial before a military commission at GTMO. The opinion relies on language in the Military Commissions Act providing that the D.C. Circuit’s jurisdiction in this context comes into play only after a final judgment by the commission that has been approved by the Convening Authority and after all aother MCA appeal options are complete.

Constitutional Cartography & the Parsing of Terrorist Space - I’ve been reporting on the Opinio Juris Insta-Symposium (OPJIS) on the Boumediene Case in dribs and drabs as I stumble through the wealth of offerings from various contributors [Mike's piece is also cross-posted at Small Wars Journal, where it sits nicely next to a companion article by Robert Lamb on Ungoverned Areas and Safe Havens]

Benjamin Wittes on Law and the Long War - The smash book of the season… reviews and commentary on Benjamin Wittes’ new book Law and the Long War: The Future of Justice in the Age of Terror (Penguin Press, 2008) have been popping up all over. Mike takes a look at them.

Despite accusations that the UK is going to hell in a handcart following the release of “Osama bin Laden’s right-hand man in Europe”, Abu Qatada, and the delightful Jordanian’s subsequent renewal of the call to violent jihad, there are signs that the British judiciary at least retains a semblance of common sense.

On Tuesday 17 June 2008, the UK Court of Appeal quashed the conviction of Samina Malik, the “lyrical terrorist”, for possession of information useful for terrorist purposes under Section 58 of the Terrorism Act 2000. Originally convicted on 6 December 2007, Malik was handed a nine-month suspended sentence, partly one suspects because the judge felt under obligation to do something. Judge Peter Beaumont confessed that Malik was an “enigma” to him and that her offence was “on the margins of what this crime concerns.”

The Crown Prosecution Service will not seek a further retrial despite their obvious feeling that she’s guilty as charged, so Samina Malik can return to her life in West London an innocent person under the law. This being Britain, the press will probably hound her until her dying day - this is the country in which paediatricians are harassed for being child molesters, lest we forget. Apparently, the perpetrators of this act of staggering ignorance thought her ‘job title’ was paedophile. They should just have googled her:

I digress, and flippantly at that. The judiciary is evidently having some problems enforcing recent ‘terror’ legislation, at the appeal stage at least. In February 2008, five Muslim students’ convictions for possession of extremist material were also overturned. The ruling in both cases determined that prosecution must show intent to commit terrorism arising from possession of extremist literature. Malik owned a service manual for a 7.62mm semi-automatic Dragunov sniper rifle, but no weapon. Nor had she shown any attempt to obtain one. Ergo, not guilty on that charge. You can download the manual as a PDF if you wish, or indeed the Mujahideen Poisons Handbook [PDF], Essential Provision of the Mujahid [PDF, h/t Marisa], OBL’s “Declaration of War” (take your pick), or any number of other seditious documents in Malik’s house.

Malik may have been heading down an undesirable path, but she had to be acquitted. It might be true that her arrest and subsequent remand halted her progress along the track of radicalisation, but there is the problem of evidence, which in her case and others simply did not qualify as such. Of more concern should have been her relationship with Sohail Qureshi, who at least admitted preparing for terrorism under Section 5 of the Terrorism Act. Intelligence apparently showed that Qureshi had ‘previous’, through his attendance at jihadist training camps, and seemed to be actively gearing up to commit a terrorist offence. Malik allegedly supplied information about Heathrow Airport security procedures to Qureshi, although I’ve seen nothing in this vein that wasn’t publicly available. Qureshi is currently serving a 4½-year sentence in a British prison.

Malik’s acquittal is a mixed bag. Her defence’s argument that her (dreadful) poetry was akin to Wilfred Owen’s WWI complex horrors seems not to have been challenged by the Appeal judge as a spurious legal tactic, let alone a gross miscarriage of literary criticism. Her release helps curtail frivolous and desperate uses of the 2006 legislation, and may strengthen the central provisions of the Act. It also avoids the creation of another martyr, and the British legal system avoids another accusation of being a recruiting sergeant for violent extremists. Will it deter further abuses? Undoubtedly not, but as long as the Appeals Court continues to do its job, hopefully this will create in time a body of sensible applications of the law. If the evidence does not exist, drop the charges, and ramp up your intelligence and policing activities. Don’t bully the judiciary to cover up evidential inadequacies.

Proper commentary on Regina vs. Malik can be found at the following:

NEFA: TerrorWatch on Fatah al-Islam and Samina Malik Powerpoint - Evan Kohlmann at CT Blog

R v Malik [2008] All ER (D) 201 (Jun) - CyberLaw Blog

CPS Response to Salima Malik Appeal - Crown Prosecution Service press

Is It Safe to Download Al Qaeda Manuals Yet? - The Register

‘Lyrical terrorist’ wins appeal - BBC Online

Benjamin Duranske at Virtually Blind flags up a paper by Bart Schermer, partner in consultancy firm Considerati and an assistant professor at the University of Leiden (Faculty of Law) in the Netherlands, Alan Turing and the Matrix: Intelligent Systems for Law Enforcement in Virtual Worlds [.pdf]. It’s a thought-provoking short article, and I’m just going to pull out a few items of particular interest.

Due to the popularity of the MMORPGs [massively multiplayer online roleplaying games] and virtual worlds, where millions of people now interact on a daily basis, their relevance is becoming ever greater within our society. This relevance is heightened by the fact that virtual worlds are not isolated from the real world. While it is possible to view the ‘virtual world’ and the ‘physical world’ (i.e., the real world) as two distinct environments, they interact to a large extent. As such the boundaries of the physical world and the virtual world become blurred. The area where the virtual world touches upon the real world can best be described as ‘interreality’ (Kokswijk, 2003). A good example of this phenomenon is people willing to pay real money for virtual goods. Interreality raises all sorts of interesting possibilities for social interaction and economic activities, however it can also lead to various forms of deviant behavior.

I like the term ‘interreality’. It lends itself well to describing the fuzzy cognitive interface between the Real and the Virtual. It does slightly mask the fact that this is a contingent relationship - the Virtual currently cannot exist without the Real.

The notion of crime is somewhat difficult in MMORPGs and virtual worlds. First of all, defining certain types of behavior in virtual worlds as deviant implies almost by definition regulation of the virtual environment by a central authority … the rules of social conduct within virtual worlds may differ from those in the real world. Thus, functional equivalence of the rules of criminal law in MMORPGs and virtual worlds is not a given.

This is an excellent point, although one far too subtle for most law enforcement agencies to grasp. Their understanding of normative behaviour is likely to be grounded purely in the Real. In a sense, this is correct - why bother with a Virtual infringement if it has no effect in the Real?

Schermer identifies three types of ‘deviant’ behavior - cheating (often endemic and desirable in MMORPG gameplay); virtual crime (theft of virtual goods with Real world value, as in gold farming and captcha solving, slander, defamation, identity fraud, stimulative paedophilia simulation). The third type Schermer defines is that of ‘preparatory actions’:

[The] Internet has contributed greatly to the communication capabilities of organized crime and international terrorism. Through websites, email, internet relay chat (IRC), and instant messaging programs (AOL IM, MSN), criminals and terrorists can communicate effectively and in relative safety. However, criminals are also aware of the fact that their modes of electronic communication can be monitored by law enforcement and intelligence agencies. Therefore, they may turn to less conspicuous forms of communication such as interacting with one another in MMORPGs or virtual worlds.

Note the qualification ‘may’. The present consensus is that terrorist use of virtual worlds is minimal, although this is likely to change. Contrast considered research with the breathless reporting of last summer, in which The Australian and its News Corporation sister The Times of London claimed that “the dismantling and disruption of military training camps in Afghanistan and Pakistan after September 11 forced terrorists to turn to the virtual world.” This notion of ‘virtual sanctuary’ is riddled with conceptual errors as it is, and the facts do not support even the basic premise of these stories.

But, as Schermer says:

It is likely that with the increasing popularity of virtual worlds, virtual crime will become a more serious problem over time. Therefore, at some point in time law enforcement in virtual worlds may become necessary. When it comes to the policing of cyberspace, surveillance plays an important role. For the context of this article, three levels of surveillance play a particular role, viz. 1) surveillance at the IP level, 2) surveillance at the application level, and 3) surveillance at the interaction level.

I agree with this, and Schermer suggests three ways that software agents might undertake surveillance in lieu of human agents. Unobtrusive agents are disembodied elements of the invisible surveillance infrastructure. Avatars could simulate real-life police officers, and would be visible and accessible in-world, much like the ‘bobby-on-the-beat’ model of traditional policing. The third option is undercover agents, posing as normal avatars, and interacting socially with other residents or players. These would not be immediately recognisable as surveillance operatives, as they would pass the Turing test by demonstrating plausible intelligence. They would also be subject to the same risks as real-life agents engaged in surveillance, entrapment and infiltration operations.

Schermer suggests the following legal ramifications:

When we examine the use of software agents for surveillance on the interaction level, it is my opinion we must distinguish between software agents that merely ‘patrol’ cyberspace, and software agents that interact more directly with inhabitants of virtual worlds. For the most part, I feel that the first type of surveillance is part of the normal police task and that as such new rules are not necessary. When software agents actually start interacting with inhabitants of the virtual world, new rules will likely be necessary. The reason for this is that, in general, these agents will be more intelligent and will operate within the personal sphere of the player, where they could form a greater threat to privacy and liberty.

My immediate thought is: within whose jurisdiction does it fall to uphold rights to privacy and liberty? I’d like to think that recent initiatives like Project Reynard will consider the legal implications of policing cyberspace. Does international rights legislation apply? If the internet is non-locative physical space, as I’m beginning to think it should be considered, how do we determine jurisdiction? Through consideration of nationality of actors? ISP location? Location of intended acts? Location of virtual acts - game servers? The virtual world Tribal Net (out in beta this week) uses a distributed network of user-owned PC-based servers - another innovation likely to fox current legal frameworks.

These issues are not going to go away.

I doubt that claiming the Third Amendment against non-consensual harbouring of military botnet code would work but it’s a nice idea.

Amendment 3 - Quartering of Soldiers. Ratified 12/15/1791:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

(h/t harflimon at Brainsturbator)

This is one of the better articles I’ve read about gold farming:

Gold Farmers are young people who earn their living by playing MMORPG [massively multiplayer online role-playing games]. They acquire (”farm”) items of value within a game, usually by carrying out in-game actions repeatedly to maximize gains, sometimes by using a program such as a bot or automatic clicker.

They sell the artificial gold coins and other virtual goods they’ve harvested to players and/or farming organizations and get “real” money in return. Players from around the world will then use the golden coins to buy better armor, magic spells and other equipments to climb to higher levels or create more powerful characters.

This is a well-established practice in China, as well as the Philippines, Mexico and elsewhere, and is another example of how people are earning real money through the use of virtual worlds. And lest anyone think that the real life effects are negligible or insignificant, people have been murdered in disputes over virtual gaming assets.

On Friday I was lucky enough to attend the 8th Social Study of ICT Workshop, ‘The Habitat of Information: Social and Organizational Consequences of Information Growth‘, organised by the Information Systems and Innovation Group at London School of Economics:

Information growth is a distinctive phenomenon of the late 20th and early 21st century. Large varieties of information are currently produced and circulated, in a rapidly increasing scale, across the various institutional domains of contemporary societies. Technical and administrative innovations have been expanding the interoperable platforms that make possible the development and diffusion of information within and across systems and organizations. At the same time, a range of devices from desktop computing to cell phones and digital cameras have been spreading across the population, making individuals and social groups important producers and consumers of information. A pivotal development has been the emergence, expansion and deepening involvement of the internet in social and economic life.

Taken together, these developments establish a new socio-economic environment in which information-based operations and services acquire crucial importance. This is clearly shown in the rapid ascent to economic dominance of internet-based companies that demonstrate superior data editing and information management strategies. New commercial possibilities steadily develop around the production, ordering and distribution of information, as data become interoperable across sources and older forms of information (e.g. image, text and sound) are brought to bear upon one another. But information growth has wider social implications as well. The involvement of information in every walk of life redefines the relationship between information and reality, and reshapes the social practices through which information is stored, retrieved, understood, disseminated and remembered. Increasingly, information mediates between humans and reality. In this context, the activities of ordering, making sense, evaluating, navigating and acting upon information step onto the centre-stage of contemporary life, impinging upon skill profiles and personal choices. They often do so under conditions in which the established boundaries between individuals and institutions are rendered shifting and negotiable.

I missed the keynote address by Albert Borgmann, Information Growth and the Texture of Reality [.pdf], but it was his attempt to help us understand the role ‘information plays in shaping the symmetry between the texture of reality and the integrity of humanity’. One of the themes of the conference was defined thus:

The hopeful beginnings and expectations [of television as a new era of thoughtfulness and cosmopolitanism] were thwarted by a seemingly incidental feature of television. It greatly reduced the labor of realizing information. When in the novel Moby Dick Captain Ahab is introduced, you get much on appearance and character. “His whole high, broad form seemed made of solid bronze, and shaped in an unalterable mould,” you are told . “There was an infinity of firmest fortitude, a determinate, unsurrenderable wilfulness, in the fixed and fearless, forward dedication of that glance.” And much more. But even more is left out, and you have to draw on your experiences of forbidding and determined men to generate the fuzzy and powerful image that is the characteristic product of careful reading.

When you see the film, it’s Gregory Peck you see. Every feature of appearance is filled in, many a trait of character is lost. What you had to create actively as a reader you now receive passively as a viewer. You’re enthralled where once you were engaged. Information has become rich, but it’s no longer dear, neither expensive nor treasured. It’s easily available. To know the story of star-crossed lovers, you need not buy a book nor do you have to go to a theater. It’s delivered to the screen in your living room.

Borgmann goes on to describe the phenomenon of television thus:

the logic of the medium has conquered the earnestness of the messages. Glamour pervades the world of television, and reality is unable to match it .. Everything that’s actual is up against a superior possibility.

The advent of the personal computer changed all this:

In 1975 you could buy the Altair 8800 as a kit for $397. Assembling it gave you insight into the inner workings of the most advanced technology. Using it to rearrange your household gave you a sense of luminous order. Communicating with like-minded people and gathering information from near and far engendered a feeling of civic engagement and self-governance, the prospect of working from your home promised to empty the roads and clean up the atmosphere.

In 2008,

… the power and complexity of computers has reached the point where no engineer, not to mention the devout lay followers, is able any longer to understand a computer all the way down. At one level or another, structures recede into a black box whose functions are understood and whose structures are not. There is usually someone who can look into a particular box, but no one has a grasp of all the nested boxes, and many a software is fully understandable to no one …

Today our improbably powerful personal computers are impossibly easy to use. The price for that ease is the total opacity of the substructure of technological information.

But ‘is there a discernible shape to the culture of technology?’ Borgmann argues that there is, and this can be best explored through the ‘moral concept of commodification’, ‘the detachment of a thing or a practice from its texture of engagement with a time, a place, and a community … which uniformly vaporizes technological information and envelopes actual reality in a cloud of possibilities.’ But ‘[e]very such possibility is crowded in turn by further possibilities, and attention quickly wanders from one link to another. Possibility contains and degrades actuality.’

The commodities of information are suffused with the charm of magic and appear to realize the dream of the omnipotent genie that can be summoned from a lamp or a screen to answer any question and fulfil any desire. Technology is not magic, however. Every commodity rests on a machinery, and every instance of commodification is implemented by a process of mechanization. The experiential division and technical conjunction of commodity and machinery constitutes a pattern that is most impressively realized in technological devices such as the telephone or the personal computer. We can call this pattern the device paradigm. It has given the fabric of reality a universal and uniform texture and at the same time has divided it into a surface of abundant and diverse information commodities and a substructure of complex and concealed machineries.

…

The future growth of information will indulge our desire for commodities even more and make the comprehension of the underlying machinery yet more challenging. With the growing incompetence and incomprehension that we have to expect, we must wonder how technological societies can hope to survive if not prosper. It’s crucial to recognize that technology is sustained by a specific comprehension. All citizens of the advanced industrial countries have a thorough if implicit understanding of the device paradigm.

Borgmann sees the challenges of an information-heavy world as a moral problem:

The moral challenge is to recognize the threat to human integrity that is built into the texture of information technology—the commodity side that obviates competence and the machinery side that eludes comprehension. But meeting the challenge does not mean halting the growth of information or regimenting its technology. There are two parts to meeting the challenge. One is to deepen the common comprehension of information technology … The other part is the recognition that within the culture of technology there are focal points that are not technological and yet informed by technology. Certain occasions dissolve the device paradigm and reveal a region of engaging things and competent persons.

And the prescription?

Rather than letting the possibilities of information dissolve our actual engagements we must allow focal occasions to dissolve the fog of distraction. If we articulate the focal points in our lives, information will arrange itself appropriately. The texture of reality will then assume a new shape, a shape that is both luminous and well-ordered. Being well-ordered, it will engage our competence; being luminous it will enlarge our comprehension, and the texture entire will help us to invigorate our memory and integrity.

The second paper was presented by John Gantz, Chief Research Officer at International Data Corporation, ‘The Expanding Digital Universe: Impact on Information Management, the Role of IT, and the Organization‘. Gantz laid out the principal findings of the influential 2008 IDC report The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth Through 2011 [.pdf]. If Borgmann was laying out the philosophical framework for the discussion then Gantz was putting statistical flesh on the bones of digital information growth. The IDC report is dense with facts and figures and I’ll only pull out a few of the most important features:

• the digital universe in 2007 (281 exabytes or 281 billion gigabytes) was 10% bigger than anticipated prior to the study
• by 2011, the digital universe will be 10 times the size it was in 2006
• the amount of information created, captured or replicated exceeded available storage for the first time in 2007. Not all information created and transmitted gets stored, but by 2011 almost half of the digital universe will not have a permanent home
• some of the fastest-growing generators of digital information include: digital TV, surveillance cameras, internet access in emerging countries, sensor-based applications, datacentres supporting ‘cloud computing‘, and social networks
• consumers/individuals account for c.70% of information but business/enterprises have ‘responsibility/liability’ for c.85%
• unstructured information accounts for c.95% of the data generated
• information about individuals is growing faster than the information they create

There is much, much more in the report, along with research on the effects on business and other agencies. Gantz provided four pointers to the future:

1. organisational stress will reach critical levels soon
2. the distance between leading edge organisations and the average enterprise will lengthen
3. the importance of ‘real time’ information will increase
4. the corporate value of information is still little understood

There followed a panel presentation on management of information resources, which I won’t describe here. The afternoon session opened with a dense and brilliant presentation by Jannis Kallinikos of LSE, Living in Ephemeria: On the short-lived and Disposable Character of Information [.pdf]. Kallinikos is a well-known theorist and thinker on information and his 2006 book The Consequences of Information: Institutional Implications of Technological Change comes highly recommended, and informed much of his talk.

Kallinikos describes ‘Ephemeria’ is the ‘land of short events’ and his basic premise is that ‘computer-based information is becoming increasingly short-lived and ephemeral’. He admits that this sounds paradoxical ‘against the background of the durable and retrievable character of computer-based information’ but is argued by distinguishing between data and information thus:

Data are arrangements of standardized marks that serve the purpose of constructing records of activities, incidents and events’. These ’standardised marks, e.g. verbal, numerical or pictorial, are organized in semiotic and representation systems’ which can be stored and routinely rendered as information by ‘reinserting them to relevant contexts of social action’. Information on the other hand is an ‘ongoing accomplishment’, ‘the illumination of details or contingencies underlying the pursuits of social agents’, and cannot be stored’. Furthermore, ‘the recovery of data to information may not be straightforward’.

This all has direct repercussions for the digital environment in which we increasingly operate, as well as existential challenges for our lives generally. Also critical for analyses of the information environment are ‘the self-referential dynamics and self-propelling qualities of information growth’ and the ‘computational rendition of reality’. This is directly applicable to studies of current conflict, particularly globalised insurgency. I wrote a recent paper that suggested that the properties of data are crucial factors, force-multipliers in fact, in the likely persistence of globalised insurgency. After hearing this talk, I will have to revisit this thesis and distinguish better between data and information, and the underlying digital dynamics, although I think the argument still holds water.

Lev Manovich delivered a decent talk on How to Track Global Digital Culture [.pdf abstract]. I knew Manovich best as the brain behind Information Aesthetics, dedicated to visual representations of data at the macro-level, and his presentation focused on this element of the subject area.

The afternoon panel on ‘Information, Memory and Culture’ picked up on Borgmann and Kallinikos, with Elena Espósito talking about the relationship between memory and forgetting and Felix Stalder on constructing social temporality from data (best quote from Stalder: ‘time is merely metadata’). Of most interest was Mireille Hildebrandt, asking ‘what happens to legal certainty on the shifting sands of data?’ Law is both normative and decisive, constructing social reality rather than reacting to it. If law is linear, as she suggests, how does this relate to the non-linearity of conflict? I use this non-linear notion straight from Clausewitz (which Münzenberg wrote about recently) and it struck me that this dichotomy might be useful when examining why law and war constantly seem to be rubbing one another up the wrong way. This is particularly true in post-3GW warfare where traditional norms are often abandoned, exposing fractures, inconsistencies and inadequacies in the legal framework which circumscribes the conduct of ‘war’.