Metrojet Flight 9268 – A Preliminary (Legal) Remark

As most longtime readers are aware, I know a thing or two about international aviation law and have even ventured to comment on it from time to time (see, e.g., posts related to the Malaysia Airlines tragedy). News has now broken that Russian air carrier Metrojet Flight 9268 (7K9268), which crashed over Sinai last week, was likely brought down by a bomb planted by the so-called Islamic State (ISIS) or one of its affiliates. Nothing is 100% official yet, though United States and United Kingdom intelligence services are backing this conclusion. Russia and Egypt are not so sure.

It should come as no surprise that the apparent attack on 7K9268 is a crime under international law. The 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971 Montreal Convention) expressly prohibits any act which endangers, damages, or destroys an international carrier, though arguably earlier air-crimes treaties and customary international law proscribed such actions as well. One of he purposes of the 1971 Montreal Convention was to ensure that air criminals would be either prosecuted or extradited, no matter where in the world they are apprehended (the classic principle of aut dedere aut judicare). Despite the hype around the air-crimes treaties, none of them impose an unbreakable obligation on their respective state parties to prosecute or extradite. Any state can have recourse to its national laws governing extradition to block the obligation. So, for example, a country which has a law prohibiting extradition to any state which imposes torture or the death penalty can evade the obligation. As for prosecution, that is left up to national authorities; they can take a walk if they so desire.

What this means is that there is no guarantee under international law that the perpetrator(s) of the 7K9268 attack will be brought to justice even if apprehended. While there would no doubt be intense diplomatic pressure for any apprehending state to comply with the principle of aut dedere aut judicare, it’s uncertain that it will, particularly if the domestic political costs for doing so are high. The only reliable recourse Russia has is to use its own resources, including military force, to track down and kill or capture those responsible.

I will likely write more on this as further information comes to light.

The Malaysia Airlines Tragedy and International Law – Post-Postscript

Today’s news that a Russian-built Buk missile launched from eastern Ukraine brought down Malaysia Airlines Flight 17 (MH17) has set off fresh calls to hold the perpetrators legally responsible. That is exponentially easier said than done, as I discussed last year on Opus Publicum in a series of off-the-cuff posts examining the international-law issues surrounding the tragedy. (For those unaware, I am the co-author of a critical treatise on international aviation law published by Cambridge University Press.)

At this point I see no compelling reason to substantially revise the preliminary conclusions I reached last year: Russia will skate; the Ukrainian rebels directly responsible will likely not be apprehended; and Malaysia Airlines itself will wind up footing the civil-liability bill. For those interested, I have linked the original posts below.

Augustus Sol Invictus

For a variety of reasons I miss teaching, and not just because I think young and impressionable minds ought to be subjected to my every intellectual whim and fancy. (That’s what blogs are for.) I miss it because teaching provided me with both the chance to sharpen my thinking on the subjects I taught (primarily aviation and trade law) and to interact with a fairly diverse group of students who routinely brought a surprising amount of intellectual energy to the classroom. I know not every professor, former or current, can say that, even at the law school level. Having had the luxury of teaching niche international-law classes which, generally speaking, attracted students with a genuine enthusiasm for the material, I doubt that my five years as a faculty fellow at DePaul University College of Law were in any sense typical. Adding to the atypical dynamic of my time at DePaul were the personalities of certain students, perhaps none more fascinating and offsetting than that of Augustus Sol Invictus. Yes, you read his name right, and if you have been following the news, then you know he is not only running for Marco Rubio’s former U.S. Senate seat, but apparently sacrificed a goat and drank its blood, too.

It is not my intention to speak in any depth on the personality or academic performance of Augustus. The former is apparent enough from his various YouTube videos, interviews, and Internet scribblings; the latter is nobody’s business. What fascinates me is what his “political orientation”—a strange brew of libertarianism and neo-paganism—says about the failure of American political ideology, one which historically took the liberal ethos and attempted to fuse it with Christianity (or, at least, Christian religious symbolism). Based on a perusal of Augustus’s writings, housed at his law firm’s website, it seems he is attaining to libertarianism’s apotheosis, namely the freedom from all reasonable constraint without any horizon or vision. Of course, there exists a tension between Augustus’s libertarian politics and neo-paganism. For while the libertarian wants a life free of demands and full of entertainment—the very thing which nauseated Carl Schmitt enough to come out swinging against liberalism in his seminal work The Concept of the Political (a book Augustus has perhaps read)—the pagan’s (though perhaps not the neo-pagan?) existence has cosmological meaning, albeit of a fated variety. Augustus, the good libertarian, doesn’t want fate; he just wants Lebensraum for guns and narcotics.

This confusion of the spheres is not entirely Augustus’s fault. Having been subjected to a run-of-the-mill undergraduate experience coupled with a “legal education” (I use that expression lightly given the current orientation of most law schools), he’s no doubt been taught how to huff hard the paint-thinner of secular-liberal ideology while embracing his “individuality.” That stab at individualism seems to have decayed ironically into an unspectacular internalization of the worst aspirations of American culture. Many may be nauseated by some of Augustus’s extracurricular activities, to say nothing of his personal beliefs, but he is fighting—or grandstanding—to defend them. He’s doing the same for society’s intermundane desire for six figures, semi-automatic rifles, good coke, 1.3 kids, and a porn-packed iCloud as well. Who are we to judge? We deserve him representing us.

Posted Under a Rainbow Banner

Preface: The title of this post, which was not the original title I had intended, comes from the fact that I can only post to WordPress today underneath a rainbow banner. It’s there, on the screen, staring at me. Perhaps it’s there to remind me that I should be celebrating, or admonish me for not doing so.

Continue reading

Germanwings and International Law

For those interested, my take on the international liability issues surrounding the recent airline crash in France, “Germanwings Tragedy: Untangling the Legal Web,” is available at The National Interest. Here’s an excerpt:

The crash of Germanwings Flight 9525 in the French Alps on Tuesday opens another chapter in the macabre story of international aviation that began a year ago with the disappearance of Malaysian Airlines Flight 370 and seemed to reach its tragic peak in July with the downing of that same airliner’s Flight 17 over eastern Ukraine. The loss of AirAsia Flight 8501 in December was no less tragic, though it failed to capture sustained public attention. Breaking reports that Flight 9525 was brought down intentionally by the aircraft’s copilot, 28-year old German citizen Andreas Lubitz, has sparked an international outcry and a full criminal investigation by French officials. In the end, who will pay and why are questions that are already addressed under international law.

More on Plagiarism in Legal Academia

For those who care neither about plagiarism nor legal academia, I assure you this will be my last post on these matters (for now). In the previous post, I sketched how law professors can, and often do, incorporate student work into their scholarly output with less-than-adequate attribution. In perusing a few websites and articles (the very few that ever dare take up this topic), I noticed that one of the frequent defenses of this practice lies in the fact that professors must routinely direct students to their sources; provide details on how they want them analyzed and written up; and then make further modifications—usually stylistic—on the final product. All of that may be true in some circumstances, but I know from first-hand knowledge that the versions of events I set forth previously does occur. And, furthermore, I have seen little evidence that the practice isn’t widespread or just limited to a handful of wayward professors.

Continue reading

Plagiarism in Legal Academia

Following up on yesterday’s post, “A Note on Plagiarism,” I want to say a bit more about the phenomenon of plagiarism in legal academia. While some high-profile incidents have occurred in the past, it’s still a topic rarely discussed—unless it involves students. Students who commit plagiarism, such as Harvard Law graduate Megon Walker, can expect to find their career prospects crushed, assuming they are not expelled. Professors who commit plagiarism, on the other hand, have a playbook of defenses, some more plausible than others. For example, professors who are “busted” for improperly citing sources or lifting passages from other works without attribution can avail themselves of the excuse that it wasn’t their fault; one of their numerous student research assistants (RAs) must have done it. And that is the end of the story.

Continue reading