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.

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.

The evolution of virtual environments is of fundamental interest to this blog and one aspect that is certain to become of structural relevance to their development is that of law. Benjamin Duranske of Virtually Blind has an excellent post on this issue, framed as a Q&A between the virtual lawyer and a newbie to this topic. . The relevance of this article to Ubiwar is multi-faceted but perhaps one strand of thought should address the normalisation of human activity within virtual worlds, including both the practice of war and the legal framework for its commission. Whether virtual law will reflect the laws here in ‘meatspace’ or embark upon a trajectory of its own can only be speculative at present, but it will inevitably be grounded in existing laws at the outset.

What follows is a heavily edited version of his post and I recommend reading the original article here.

What is a virtual world?

In modern, first person 3D computer games, you move a character — an “avatar” — on the screen. That avatar represents you. In a lot of these now, there are other real people there too at the same time. The whole thing is hosted on a server somewhere, not on your individual computer, so people can participate from all over the world at the same time.

Collectively, these places are referred to as “virtual worlds” or “3D networked environments.” In game-based 3D environments, you’re usually fighting monsters, casting spells, picking locks, or shooting bad guys.

If you get rid of all of the game stuff and add in tools that let users build things, you get a “social virtual world.” You can find literally anything you can imagine in these places. Real money — sometimes lots — changes hands. Besides a lot of residents who are making some portion of their real life living in these places renting land, selling virtual products, and offering services, there is also a large contingent of real-life lawyers, executives, doctors, law professors, and even congresspeople who use virtual worlds for education, training, advertising, networking, communication, and more.

The most popular free-form social virtual world for adults at the moment is Second Life, but there are others too, and there are dozens for kids that have even larger subscriber bases. Altogether, there are hundreds of social virtual worlds and games; the industry is booming, but is in a real state of flux.

Okay, but legal issues? Seriously?

Many people, including me, believe that we aren’t just seeing a bunch of play and social places, but the emergence of the 3D internet. Basically, we think that the internet is going to look more like an interactive movie than a newspaper in 5-10 years. If this is right, whatever legal issues you see involving web sites now, you’re going to see involving 3D spaces in the future.

It’s not just the future we’re talking about though — the legal issues, even now, are very real. The reason is mainly that there’s money involved — a lot of money. One estimate puts the market for “virtual stuff” in games and social virtual worlds at well over $2 billion annually already. The property law questions alone are enough to keep a lot of people scratching their heads. There are also potential issues around defamation, intellectual property infringement, fraud, stalking, contract law, and much more. There have even been some lawsuits over this stuff already.

Didn’t somebody say 3D games and virtual worlds are swamps of sexual content and brain-rotting badness?

There’s definitely adult-level violence in some games (less so in social virtual worlds) and parents should take an interest in what their kids are playing — just like they should take an interest in what they’re watching on television. As much press as there is on this issue, the U.S. game and virtual world industry actually does a reasonably good job policing itself, and the government is actually pretty good about letting the industry sort itself out. It could be worse: Germany requires that online game companies appoint a “youth protection officer”.

Are there really intellectual property issues in virtual worlds?

You bet there are. If you think the recent copyright case over the Harry Potter Lexicon shows the extent to which J.K. Rowling can get upset about copyrights, I wonder how she — or Warner Brothers — would feel about an entire Second Life recreation of the key locations from the books and movies where people are selling wands, robes, and even complete “skin” and “shape” combinations that make one’s avatar look exactly like a character from the movies. There’s even a video floating around that features Harry Potter and Ron Weasley avatars visiting a Second Life strip club and then performing sexual acts on each other.

Besides Harry Potter, there are whole areas selling unlicensed products based on the Star Wars movies, on Anne Rice novels, and on dozens of other books, films, and television shows. Straightforward trademark infringement is rampant too; there are hundreds, if not thousands, of Second Life users selling knock-off brand name products — like Nike shoes — for avatars.

Why aren’t Warner Brothers, J.K. Rowling’s lawyers, Lucasfilm, and the lawyers for Nike trying to shut this down? Mostly because they, like most mainstream companies whose copyrights and trademarks are being infringed in open-creation virtual worlds like Second Life, have no idea it is happening yet — but that is changing as more and more mainstream companies move into these spaces. Apple is staking out some patent space here, which could signal an interest in taking its Apple Stores virtual. A lot of companies have already opened virtual world outposts too, including Herman Miller, Showtime, Dell, AOL, and more than 100 others.

There were even two lawsuits last year over theft of intellectual property between virtual world users, neither of whom was associated with a brick-and-mortar business.

What about Alternative Dispute Resolution?

Some virtual world organizations are trying to set up justice systems, and the government of Portugal has already set up an ADR facility that takes mediation cases. And many lawyers have found that mediation is, generally, a good idea.

Of course, ethical negotiation in mediation is a big issue in the real world, and adding a layer of anonymity and the complexities of international disputes should raise even bigger concerns in virtual world mediation. Happily, though, programming tools available in virtual worlds allow the creation of tools like virtual notary services which can help solve some of these problems in ways that just aren’t available in the real world.

Did you say some people are trying to set up justice systems in virtual worlds? Doesn’t that raise constitutional law issues?

“[G]overnance” and “constitutional” issues in virtual worlds — where we are basically talking about a private company renting server space to users — pale in comparison [next to recent U.S. constitutional wrangling]. There are a few efforts out there to create microgovernments in virtual worlds, complete with constitutions, justice systems, and, typically, some kind of democracy. Usually, voting rights are tied to renting “virtual land” (really, server resources that let users keep their houses, stores, and miscellaneous stuff available to other users even when the owner is not logged in) from the microgovernment which, in turn, rents these resources from the virtual world provider.

Basically, a group of people who all choose to share space in the virtual world can vote to make that space look a certain way, to exclude certain groups, to allow or disallow adult content, or whatever.

In the end, though, there’s a lot of trust involved because the guy who rents the land from the provider can basically do whatever he or she wants — and the provider can pull the plug anytime too. At least it’s easier to control voter fraud. Though positive ID for voters is hard in the real world, it is fairly easy in the virtual world, at least as far as only letting certain avatars vote — and for in-world governance, that’s all that matters.

A few examples of microgovernments in Second Life are Extropia, the Confederation of Democratic Simulators, and the Al Andalus Caliphate. There are others too; they all offer greater or lesser degrees of participatory democracy depending on their individual model. One that is hoping to create a justice system that works across the whole virtual world (not just on land owned by its creators) is the Metaverse Republic.

Any employment law issues in these places?

There sure are. People are routinely hiring each other in virtual worlds as greeters, receptionists, bouncers, dancers, and more — often for rates far lower than U.S. minimum wage. There are possibilities for real world groups to use virtual worlds for employment related tasks too, as they allow long-distance meetings with a sense of presence that exceeds phone, and even video conferencing. One wonders if virtual “face to face” meetings could facilitate the resolution of difficult situations, such as those described in an article on The Pope and Employment Law. Another benefit of semi-anonymous employment could be fair pay for women and the curtailment of other job-related biases.

Any other legal issues in these places?

Did you hear how a woman posted a YouTube video blasting her soon-to-be ex-husband for all sorts of transgressions? How people are trawling the internet for material for custody fights? Imagine what they’ll be able to dig up in a semi-anonymous virtual world where one of the most popular purchases is a set of detachable genitals and where about a third of the top 20 Second Life locations are explicitly sexual in nature.

Duranske is the author of Virtual Law: Navigating the Legal Landscape of Virtual Worlds, recently published in the U.S. Apologies to Benjamin if I’ve misrepresented any of his ideas here. I also hope he doesn’t mind me quoting so extensively from his original article …

Update:

Benjamin kindly informs us that the ToC and Chapter One of his book can be downloaded from here.

Europe facing radicalization over the web - Olivier Guitta in the Middle East Times (also now on the Counterterrorism Blog)

This won’t be news to many people, but there are some interesting titbits of information regarding the mechanics of the process on the software side and the practical response of France, Switzerland and the Netherlands. Here’s the intro:

A few months ago Bernard Squarcini, the head of the DST (Direction de la Surveillance du Territoire), the French equivalent of the FBI, told the French daily Libération regarding Islamic radicalization: “An ideological transformation can be done in three months on the Web. An individual can at night auto-radicalize himself via the Web and get in touch with leaders of terrorist organizations.” This assessment shows how dire the situation is in Europe when it comes to al-Qaida’s use of the Web.

Al-Qaida uses the web for four different tasks: propaganda; communication, mostly to instruct those in the field; training future combatants, a kind of online university of terrorism; and to send messages to the enemy, mostly to the West.

For instance, one of the most popular jihadist sites in France is one which translates books on the jihad in French and gives lessons on urban guerilla tactics. (This site got more than 3 million visits from France alone). Another Web site explains how to get weapons in the West (hide, assemble and breakdown) and how to manufacture bombs from products found in supermarkets.

The propaganda primarily targets youngsters. Some of them join the virtual jihad or “webtifada”, i.e. cyber criminality.

Read the rest of this article here.

EU Press Release 18 April 2008 (in full):

Amendment of the Framework Decision on combating terrorism

Today the Council reached a common approach on the amendment of the Framework Decision on combating terrorism proposed by the Commission on 6 November 2008. The amendment up-dates the Framework Decision making public provocation to commit a terrorist offence, recruitment and training for terrorism punishable behaviour, also when committed through the Internet. The amendment is well-balanced in terms of its effects on freedom of speech and general respect for human rights.

The Council Framework Decision of 13 June 2002 on combating terrorism constitutes a key tool in the fight against terrorism. It harmonises the definition of terrorist offences in all Member States and ensures that they establish for natural and legal persons having committed or being liable for such offences penalties and sanctions, which reflect the seriousness of such offences. It sets out jurisdictional rules to guarantee that terrorist offences may be effectively prosecuted and adopts specific measures with regard to victims of terrorist offences because of their vulnerability.

The proposal intends to up-date the Framework Decision by introducing three new offences: public provocation to commit a terrorist offence, recruitment and training for terrorism. It aims to equip our legal systems across the EU with the adequate tools to bring to justice the criminals who spread violent propaganda providing terrorism tactics and instructions on how to manufacture and use bombs or explosives to provoke others to commit terrorist acts. The new legislation will make it easier for law enforcement authorities to get cooperation from internet service providers, to prevent crimes and identify criminals while, at the same time, ensuring that fundamental rights remain well protected.

The amendment of the Council Framework Decision of 13 June 2002 on combating terrorism is intended to harmonise national provisions on public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism, so that these forms of behaviour are punishable, also when committed through the Internet, throughout the EU, and ensure that existing provisions on penalties, liability of legal persons, jurisdiction and prosecution applicable to terrorist offences, apply also to such forms of behaviour.

Individuals disseminating terrorist propaganda and bomb-making expertise through the Internet- can therefore be prosecuted and sentenced to prison insofar as such dissemination amounts to public provocation to commit terrorist offences, recruiting for terrorism or training for terrorism and is committed intentionally.

In these cases, courts or administrative authorities will be able to request internet service providers to remove this information according to national rules implementing the Directive on electronic commerce.

The wording which is proposed is as close as possible to the wording of the Council of Europe Convention on the Prevention of Terrorism which provides for an excellent example of how the use of the Internet for terrorist purposes can be dealt with in a way which respects the freedom of speech.

Interesting. This looks to be an item of European legislation that the British government might actually adopt without complaint. Mainly because it doesn’t conflict with their own legislation of recent years which already allows them to approach ISPs on such issues. EU-wide consistency is undoubtedly a good thing but pan-European vigilance is necessary to ensure the new offences are deployed correctly and the legislation is not misused…

(via Amicable Collisions)