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Article by Sarang Shah Closing the 2019 Berkeley Journal of International Law (BJIL) Riesenfeld Symposium was a conversation between Leo Cunningham, Partner at Wilson Sonsini Goodrich & Rosati and Amelia Miazad, Director of the Business in Society Institute at Berkeley Law. After a keynote and panel discussion exploring the broader policy and politcal contexts of corruption, the discussion between Cunningham and Miazad was a welcome opportunity to talk specifically about corruption in the corporate context and how corporations respond to it. Broadly defined, corruption is a falling away from an ideal. What do we do though when people are perpetually falling? From an institutional perspective, the answer is compliance. Post-Enron and post-financial crisis, compliance programs are now everywhere, but before the 1970s they were practically non-existent. The Foreign Corrupt Practices Act of 1977 (FCPA) was one of the first pieces of legislation to will these compliance programs into existence. According to Professor Hana Ivanhoe, one of the foundational premise of the FCPA is the idea that using a public office for private gain is corruption. When those subject to US jurisdiction try to sway agents of foreign governments to act in their favor, they not only fuel a culture of corruption in that country but also interfere with American foreign policy aims, albeit indirectly. The FCPA, of course, does not punish the public officer in a foreign jurisdiction, but the person or company under US jurisdiction who feeds the foreign official’s private gain. It essentially tries to combat corruption by starving the beast. By requiring broadly that companies monitor their agents transactions and behaviors, the FCPA created a serious institutional risk of liability that could not be solved at a strategic level. Following passage of the FCPA, companies now had to ensure that even its lowest level employees did not offer any cash or gifts to an agent of a foreign government. Simply put, corporations had to become their own cops. Why does a corporation require compliance programs to begin with? For example, few individuals would concede that they need a compliance program to avoid breaking laws. So why does a company need such an internal watchdog? One reason is simply that companies are large and complex, and so the existence of one bad actor could expose the entire company to risk of liability even when it isn’t company policy to break the law. Another reason is that sometimes the law is unclear at an individual level. Also, while it may be clear that lavishing a government official with gifts on behalf of the company is a violation of the FCPA, is buying my government client a round at the pub after work similarly a violation? So what works when it comes to compliance? Brute surveillance and enforcement can certainly be effective, but requires a vast amount of time and resources. What works better, according to compliance professionals, is cultivating a culture of compliance that emanates from the top of the organization and on downwards. Such a remit places an enormous burden on the compliance team, which may or may not be the general counsel’s office within a corporation, to shift the outlook and mindset of the company itself. Despite this enormous burden, there has nevertheless been a dramatic increase in compliance programs and enforcement on the part of federal authorities over the past decade for the following reasons. First has been the promulgation of defined US sentencing guidelines. Another factor has been the proliferation of deferred or non-prosecution agreements (DPAs/NPAs). A majority, 63%, of corruption cases end in settlement with the Department of Justice (DOJ). Many of these settlements require the expansion or reform of a corporation’s existing compliance program. Finally, the creation of whistleblower programs has incentivized employees to reveal to federal authorities the existence of corrupt transactions when a corporation chooses not to willfuly disclose their violations of federal law. Cunningham called the cultural effect of corruption as “the virus of anticompliance,” and the role of compliance programs as combating that virus like an inoculation or a well-honed immune system. Cunningham believes that “if you can be corrupted, you can also be anticorrupted.” Or as Miazad put it at the top of her discussion with Cunningham, there are “no bad people, just bad corporate governance.” In the immunological metaphor, compliance is the responsive mechanism to harms that emerge when the corporeal system it is a part of go haywire. Alas, no matter the vigorous efforts of companies to remedy corruption, the core conflict at the heart of compliance remains. Compliance means resisting a choice that carries some sort of incentive, whether that is a tactical gain for an employee within their own institutional hierarchy or a broader gain of profit for the corporation itself. When it comes to compliance, the phone call is coming from within the house. Cunningham strongly suggests that incentivizing compliance, rather than merely disincentivizing violations of it, is an effective remedy for this problem. Alas, incentives tend to work for actions you can demonstrate, and not so much for actions you don’t commit, especially when there’s a chance you can get away with it without anyone knowing. So I suspect that incentivizing compliance merely returns us to the expense of brute-force surveillance and enforcement all over again. The constant struggle of attempting to remedy corruption is reminiscent of the great theodicies of the past. These apologetics sought to reconcile the existence of evil in a perfect world engraved by God. In our current dominant belief system, profit-seeking and shareholder maximization are seen by many, even still, as efficient and reasonable ways to direct our publicly-chartered enterprises. Corruption is not an intended consequence of this system. Rather, it is but a pesky result of our own individual human failings. Compliance teams are in a sense merely a besuited ministry situated within the corporaton, neither beloved nor despised (except by the most driven to sin). Even when the compliance team doesn’t directly monitor or punish the behavior of the other employees, its presence serves as a talisman against the possibility of corruption within a system that drives people to it. Who then, as Miazad and Cunningham discussed, bears responsibility for violations and what is the role of the board of directors of a company? Given their fiduciary duty, they have a straightforward role of limiting the liability to which the company is exposed to. But the board can also direct the culture of a company on behalf of compliance, and even incentivize compliance through financial or other means. As Cunningham exclaimed, “culture eats strategy for breakfast.” Nevertheless, the question of moral responsibility and fiscal liability remains the great unanswered question about our complex, global capitalist system. It is clear in the age of climate change, environmental degradation, and poor labor conditions in the global supply chain that severe collective harms have resulted from the pursuit of individual profit and efficiency. Perhaps the experience of the FCPA and compliance programs can serve as a model for a broader moral, political, and legal framework that can translate the responsibility for global harms due to neoliberal capitalism down to an individual level. Or perhaps the FCPA and compliance programs are merely one more symptom of a diseased system heading toward radical systemic change.

Riesenfeld Symposium Panel Discussion Debrief by Alix Vadot On March 1st, 2019, the Berkeley Journal of International Law presented this year’s edition of the Stefan A. Riesenfeld Symposium. This year’s symposium, Corruption Zero: Addressing the Global Pandemic, focused on thematics of global corruption, its relation to the U.S. Foreign Corrupt Practices Act (FCPA), and effects of corruption on the economy and human rights. In a discussion moderated by Hana Ivanhoe, Lecturer at Berkeley Law, four panelists debated the current state of anti-corruption practices globally. Stacey Sprenkel, a member of the anti-corruption and compliance team at Morrison & Foerster, spoke of a worldwide shift towards harsher penalization of key corporations as part of a strategy to threaten other organizations and create an understanding that “no one is immune.” Beyond this strategy, a new Corporate Enforcement Policy is also intended to incentivize companies to self-disclose in exchange for reduced penalties. Dan Seltzer, the Global Lead for Anti-corruption and Government Compliance at Accenture, continued the discussion on internationalization of anti-corruption, claiming a shift towards increased collaboration and sharing of practices and information across countries. In the global sphere, the U.S. reigns and very few are immune. In the case of Ousama Naaman, for example, the possibility of trading shares of Innospec, a British company, on the U.S. stock exchange, was sufficient to establish jurisdiction over Ousama, a dual citizen of Canada and the UAE with no other ties to the U.S. Zorka Milin, Senior Legal Advisor at Global Witness, a global non-profit organization whose mission is to increase global transparency, used one of her organization’s current cases as an example of what kinds of actions need to occur for proper accountability. In a case of high-scale corruption, gas company Shell made a deal for drilling rights whereby money was being paid to a convicted money launderer, robbing the Nigerian people of their health care budget. With Nigeria as the victim, a criminal case was brought in Italy to bring attention to the situation and hold accountable the corporation and, particularly, the individuals involved. “Corruption crimes are not really committed by corporations, we all know they are committed by the people who run them,” said Zorka. If this case is successful, she said, it would be an important example of accountability for the world, specifically for the highly corrupt oil and gas industry. The panel came to an end with an innovative perspective brought to the table by El Cid Butuyan, Lecturer at Harvard Law School. Contrary to the heavily defendant-focused discussion that had been going on until then, El Cid advocated for a victim-centered approach, where groups directly impacted by corruption could have a voice in the consequences imposed on the perpetrators. El Cid heavily denounced a system in which wrongdoings that occur in one place, such as the Philippines for example, were “remedied” in U.S. courts, often leading to fines paid by corporations and going directly to the U.S. Treasury. El Cid prefers worldwide initiatives such as the World Bank’s integrity fund, where fines paid by corrupt officials could be used to better the living conditions of those populations directly impacted by corrupt practices. Although collaboration is increasingly common in the world of anti-corruption, China, which is frequently involved in many corruption scandals, remains an outlier in handling things on their own. According to some, this could lead to the establishment of a transnational court on corruption, an initiative that would not come without hurdles. Beyond administrative barriers such as enforcement capabilities, corruption is also a cultural problem – what may be viewed as corruption in one place, could be a matter of tradition in another. The current system of U.S. jurisdictional control thus presents an imperialist problem – one that would likely appear frequently in a transnational court. Regardless, most panelists agreed that a focus on holding individuals rather than corporations accountable and redirecting penalties and fines towards aid of those impacted, was most crucial in controlling the direction anti-corruption will go.

Article by Nick Reem This week, the increasingly dire humanitarian situation in Venezuela took a deadly turn: at least two people were killed and hundreds were injured at border skirmishes when an international coalition attempted to transport foodstuffs and medical supplies into Venezuela. President Maduro of Venezuela has shut down his country’s borders in past days, attempting to retain power against opposition leader Juan Guaidó. Guaidó recently declared himself interim president in a bid to unseat Maduro, and he has gained the formal recognition and backing of the United States and most Latin American and European nations. Guaidó, with the support of the United States, is forcing the issue of humanitarian aid distribution in order to compel the Venezuelan army to choose sides, show he can deliver much-needed supplies to the Venezuelan people, and catalyze further disillusionment with the Maduro regime as it continues to block (and burn) the humanitarian aid. The United States has also increased pressure on the weakened Maduro regime by blocking all US-bound oil sales from Venezuela, further depriving Maduro’s government of cash flow, but thereby exacerbating the humanitarian crisis. While the Maduro regime’s human rights abuses and the Venezuelan refugee crisis have been detailed previously on this forum, this article argues that Maduro’s instant blocking of humanitarian aid constitutes a violation of international law. The Universal Declaration of Human Rights – a Starting Point The Universal Declaration of Human Rights (UDHR) Article 25 provides for the human right to a standard of living sufficient to maintain health, including food and medical care. Maduro’s mismanagement of the Venezuelan economy has led to severe hyperinflation in recent years, contributing in part to food shortages and the inability of Venezuelans to afford many basic foods necessary for health. Indeed, this food and medicine shortage has been one of the main drivers behind 2.6 million Venezuelans fleeing their country. While the UDHR is not binding in the way a treaty would be, many scholars argue it has become customary international law through its frequent invocation in subsequent international law and treaties, and as such, is implicitly binding on all states. Applied to Maduro’s blocking of humanitarian aid, the intentional restriction of access to available food and medicine likely violates UDHR Article 25. The United Nations Security Council has previously held that the denial of humanitarian assistance in the former Yugoslavia violated the human right to an adequate standard of living embodied in UDHR Article 25. A similar finding against Venezuela may be useful in further publicizing these human rights abuses and applying additional pressure for Maduro to peacefully cede power to Guaidó. Convention on the Rights of the Child – a Binding Obligation Additionally, the Convention on the Rights of the Child (CRC) Article 24 provides for the right of the child to the “highest attainable standard of health.” Parties thereto are obligated to uphold this standard through “appropriate measures” by ensuring sufficient health care and “combat disease and malnutrition […] through the provision of adequate nutritious foods.” Venezuela ratified the CRC in 1990. Therefore, this provision is binding. Applied to the instant case, the intentional restriction of access to humanitarian aid likely violates CRC Article 24’s obligation to secure the highest available health standard for children. By willfully depriving Venezuelans of readily accessible medical and food supplies, Maduro’s regime is likely in violation of its obligations under the CRC. The conflict in Syria provides support that willful restriction of access to food and health care, including medicine, violates the CRC. Armed Conflict or Not? A Critical Distinction A large body of humanitarian law, and thus additional, international legal protections for Venezuelans with respect to the right to access humanitarian aid, is limited to the governance of armed conflict (See, e.g., the Geneva Conventions). The threshold for armed conflict was set low but traditionally applies only to conflict between states. Per the Montevido Convention (1933), a state is defined as having a 1) permanent population; 2) defined territory; 3) government; and 4) capacity to enter into relations with other states. While Guaidó’s opposition may constitute a government with the capacity to enter into relations with other states, his unsettled claim to power and uncertain popular legitimacy in Venezuela renders his opposition a mere insurgency rather than a State under the Montevido construction. Therefore, most humanitarian law protections such as Article 23 of the Geneva Convention, which provides for the “free passage of all consignments of medical and hospital stores and […] [requires] the free passage of all consignments of essential foodstuffs […] for children under fifteen […],” do not apply, because this body of law governs only armed conflict. Remedies and Next Steps Due to the limited scope of most international law with respect to intra-state unarmed conflict, international legal remedies to Maduro’s continued blocking of humanitarian aid are limited. The United States and other countries can increase sanctions and pressure on Maduro and his loyalists, but sanctions already in place are near maximal levels and contribute to Venezuelans’ lack of access to basic food and medicine. However, as previously suggested on this forum, one approach to justice is the International Criminal Court, which can continue to document these and other human rights abuses in hopes of bringing the Maduro regime to justice, although any prosecution of violators remains unlikely. Another solution is for the United Nations to employ “shaming tactics” in meticulously documenting Maduro’s violations of UDHR Article 25 and CRC Article 24 with respect to the blocking of humanitarian aid, in addition to other human rights violations, although such tactics have produced mixed results. However, such a widely disseminated report may provide the necessary “last straw” to catalyze mass military defection and further erode the remnants of Maduro’s popular support, which could facilitate a peaceful transfer of power. Hopefully, the international community will learn from its failings to quell the rampant human rights abuses in conflicts such as Syria, Rwanda, and Bosnia to peacefully resolve the power struggle in Venezuela, with the goal of preventing additional rights violations and alleviating Venezuelans’ suffering.

Article by Kerensa Gimre Last week, the Australian dollar fell as rumors spread that China was banning Australian coal importsindefinitely. Australia was the only country affected by the ban, as China continued to allow imports of Indonesian and Russian coal. Chinese officials claim that Australia’s coal is not banned from importation, but subject to delays because Australia’s coal failed to meet Chinese environmental standards. Some doubt that the move was motivated by Chinese environmental standards and instead posit that the ban is a political retaliation by the Chinese government in response to Australia blocking Chinese company Huawei from constructing a 5G network due to national security concerns. Australia claims that the coal ban violates their free-trade agreement with China and could complicate future diplomatic efforts, escalating tensions between the two countries. Last year, China accounted for 22 and 24 percent of Australia’s thermal and coking coal exports, respectively. China is also Australia’s largest trading partner, accepting 34 percent of all of Australia’s exports. A prolonged Chinese ban on Australian coal could have a significant impact on the Australian economy.

Article by Adnan Toric Tuesday, February 26, Berkeley Law’s Hana Ivanhoe spoke to a room of Berkeley Law students in anticipation of the annual Riesenfeld Symposium. The symposium will be hosted at Berkeley Law on Friday, March 1, lasting from 12pm-7pm. This year the symposium focuses on Anti-Corruption bringing speakers from various private sector, international, and academic organizations, Ivanhoe being one of them. Ivanhoe is a lecturer at University of California, Berkeley, School of Law. She teaches U.S. legal scholarship and U.S. international law governing corruption. Ivanhoe’s scholarship focuses on business and human rights as well as corporate corruption. In her talk, Ivanhoe discussed Anti-Corruption and the Foreign Corrupt Practices Act (FCPA) to touch on laws that the symposium covers. The FCPA prohibits offering or paying money or anything of value to a foreign official to either influence that official to act or decide in a certain way or to secure some sort of improper advantage in order to obtain or retain business with a corrupt intent. The FCPA is expansive and covers a lot of legal issues with the talk covering basic aspects of it. Generally, Ivanhoe discussed the broad implications of corporate corruption ranging from nepotism, poverty, and unethical business practices. She also discussed the universe of corrupt acts encompassing everything from politics to business practices. Ivanhoe precipitated the symposium with a general overview of public sector and private sector corruption and the decision to enact the FCPA. The FCPA was grounded in anxiety over events like Watergate coupled with concerns of foreign policy impact. Ivanhoe broke down each aspect of the FCPA from defining what constitutes anything of value to what is a foreign official. The FCPA’s jurisdiction is contentious along with its application as too expansive because most people and transactions fall under its jurisdiction. Furthermore, local laws interplay with the FCPA abroad often creating defenses for individuals. The FCPA primer was a brief but exciting preview of the upcoming symposium. Corporate and governmental corruption touch on central questions of fairness and justice. The symposium will feature more intensive and varied opportunities for those interested to discuss corruption and the law including the keynote speaker and Riesenfeld Award Recipient, Iván Velásquez Gómez. Gómez is the UN High Commissioner of the International Commission Against Impunity in Guatemala (CICIG) and has done extensive work with Guatemala’s Attorney General’s Office to dismantle corruption within the country.

Article by Sanjica Kumar You can either call it the sudden overflow of hidden sexual trauma or the achievable aspect of contamination by contact, the #MeToo movement is not going anywhere from the Indian Subcontinent. The #MeToo Movement began in 2017 with sexual harassment and rape allegations against American Former producer Harvey Weinstein that triggered a worldwide movement. Even though the social media mentions of #MeToo have reduced considerably since their rampant usage following Alysaa Milano's initial tweet, the hashtag still remains an unswerving feature of online conversation. The movement has shown no signs of receding. It is said that the #MeToo movement is not a trend which may disappear after a while. It is not something like the fall of the Berlin Wall or something like John Lennon getting killed. It is said to be an ongoing movement that where each day is bringing a new turn. While few liberal legislators, leftist members of the executive and the renowned members of the legal fraternity have united with the victims of sexual torture and abuse, a growing understanding is observed that the current legal system is totally inept to meet this new challenge and unless some immediate action or amendments are not made, the movement is going to fade away like a cloud in the horizon. India, being an ardent follower of rule of law and a staunch believer of open society, cannot succumb to such a predicament. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is currently the sole legislation in India that deals with sexual harassment of women at a workplace. This, though, is seen to be completely inadequate as Sec 9 of the Act, restricts the victim to complain only within a period of three months after the incident. Also, the Act only provides a preliminary inquiry of the situation and if the accused is found to be guilty, it is recommended to the employer and the District Officer to take action against the accused. The Act, apart from being highly dependent on the employer to take some action, does not provide any concrete solution to the victim because of the limitations enclosed therein. Section 354A, by way of Criminal Law Amendment Act, 2013, was inserted in the Indian Penal Code to punish the sexual harassment offenders with an imprisonment which may extend to three years. Unfortunately, the criminal matters in India take a long time to process and since no specific time has been prescribed for investigation of the crime and its trial, unless and until it is as serious an offence as child rape, there is a high probability that instead of the accused, the victim has to face the mental harassment which inevitably leads to the victim abandoning the proceedings completely. A radical change in the procedural as well as the substantive laws in India needs to be brought about. There’s a need to specify the time for completion of investigation and prosecution of the accused so that justice is provided to the victim at the earliest and a simpler manner. The #MeToo movement not only deals with sexual harassment of women at places, but there also exists broader patterns of ‘sexism’ and ‘discrimination’ They not only include physical or verbal forms of harassment but many acts that are not exclusively confined to them.  There are many non-sexual but extremely sexist forms of abuses by bosses at workplaces. Such harassments are in abundance in India. Recently, the Union Women and Child Development Minister, Maneka Gandhi, empathizing with the pain and trauma of every individual, asserted that she believes all cases of sexual harassment at work places should be dealt with zero tolerance policy. She claims that a person never forgets their sexual molesters and hence, there should not be any limit on the time for such complaints and should extend to 10-15 years after the incident as well. A four member minister’s Committee has been created, chaired by the Home Minister, Rajnath Singh, also including the Defense Minister, Nirmala Sitaraman, the Road Transport and Communication Minister, Nitin Gadkari, and Maneka Gandhi herself. The Committee is believed to advocate ways to fortify the pre-existing legal and institutional frameworks and implement them effectively. The Government has also launched the sex offender registry, to use it to anonymously complain about any harassment, and an electric complaint box wherein women can complain about the sexual harassment cases in their workplace. However, as the allegations increased against the abusers and attackers, the phenomenon uncovered breaks and differences in the opinion of women. There have been discussions about the points    of the development: “Would it be a good idea for it to concentrate on workplace assaults, or be an extensive equality campaign”? “What strategies are helpful?” “What's more, what ought to happen when allegations end up being false?” “Men could be erroneously blamed for lewd behavior or attack.” “Women could miss out on opportunities at work since men will be reluctant to work with them.” “The punishment for less extreme types of sexual misconduct could be equivalent to for progressively serious offenses.” These were amongst women's biggest concerns about the #MeToo movement. Every one of these worries was held by a larger part of women surveyed — 63 percent were extremely or to some degree worried about bogus allegations, 60 percent were stressed over lost proficient chances, and 56 percent were stressed over culprits getting a similar punishment for various offenses. In the center gatherings, a few ladies communicated stress regarding men in their families — men they portrayed as respected individual who they looked up to — would be dishonestly blamed or generally hurt as a reaction of #MeToo. The #MeToo movement have definitely opened people up and helped them to acknowledge sexual abuse without any discomfort and shame in the society. It is considered to be a huge cultural shift. Though, like many other big cultural shifts, the #MeTOO movement is also being gauged and studied upon. There was an old norm which has been taken care of but the new norms are still under contemplation.  The Government has taken an enormous step by forming committees and different apparatus to hold the offenders accountable. With the whole country adopting a transformative outlook towards the cause, one can only wait and hope for a better tomorrow and a better India. About the Author: Sanjica is a third-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She has an inclination for IPR and Criminal Law.

Article by Aparimita Pratap and Varsha Maria Koshy The plight of the Cambodian farmers drew world-wide attention in the year 2016, when the International Criminal Court (ICC) was called to initiate action against the Cambodian Government and certain corporations for widespread and systematic illegal land grabbing and environmental destruction. These illegal activities displaced and killed millions in the four-year reign of Khmer Rouge in Cambodia. These crimes were inflicted to transfer hectares of land to business corporations and these corporations were complicit in the atrocities committed against the unlawfully displaced persons.  For the same reason, the Prosecutions Policy Selection Paper in 2016 was broadened to include cases of land grabbing and environmental destruction. This piece seeks to examine the import of prosecuting corporations and corporate officers in the International Criminal Court (ICC) with reference to other international tribunals and domestic courts. In particular, it seeks to analyse the different modes of liability on corporate officers as per Article 25 of the ICC Statute (Rome Statute) and analyse of the concept of ‘indirect co-perpetration’ devised by the ICC. With the ever-increasing atrocities committed by corporations spreading across nations, it becomes pertinent to see how the ICC addresses it. Article 25(1) of the Rome Statute restricts jurisdiction of the ICC only to natural persons and not legal persons. Hence, corporations cannot be tried under the Statute. During the drafting of the Rome Statute, the extension of jurisdiction to legal persons was deliberated upon. However, the drafters did not pursue it due to practical considerations as at that time, a majority of the national jurisdictions did not hold corporations criminally liable in their domestic courts, restricting the corporations’ liability to civil tort cases. This is no longer the case, with legal systems across Asia, South America and Europe recognizing corporate liability for committing international crimes that are criminal in nature. This highlights the need to revisit the jurisprudence on Article 25(1) and to examine the scope of an amendment to that section. Any amendment to the Rome Statute requires a two-thirds majority and a subsequent ratification by member States as per Article 121. However, scholars argue that member States might be reluctant to try legal persons, especially corporations, as it would directly impinge on their economies. An alternative method, proposed by certain scholars, is to expand jurisdiction under article 25(1) only for those member States who welcome such an amendment. This alternative will also need to pass the two-third majority threshold. Thus, in the present scenario corporations cannot be tried within the Rome Statute without adequate amendments. However, actions of corporate officers have triggered jurisdiction of various international criminal tribunals and domestic Courts if their actions constitute as crimes and pass the gravity requirements under the Statute. The prosecutor of the ICC in his policy paper had opined on the Court’s willingness to try corporate officers for their involvement (both direct and complicit) in crimes present under the Statute. The International Military Tribunal (IMT) in the IG Farben case and the Krupp caseprosecuted corporate officers due to their personal involvement in the execution of crime. Like most Statutes of international tribunals, the IMT’s jurisdiction was also limited to natural persons. But the IMT made pertinent observations in the IG Farben case (despite lacking jurisdiction) when it stated that Farben, in its capacity as a corporation, violated the laws and customs of war. However, the Allied Control Council imposed sanctions on corporations for actions violative under international law. Corporate officers are those individuals who are responsible for a corporation’s criminal conduct. For instance, The ICTR, in the Media case, convicted executives and directors of the media corporation Radio Télévision des Mille Collines (RTLM) for genocide, incitement of genocide and crimes against humanity among other crimes. They were convicted for using the media (radio) as a weapon for dissemination of hatred which ultimately led to the commission of these crimes. The ICC in Prosecutor v. William Samoei Ruto and Joshua Arap Singh tried the defendants as indirect co-perpetrators under Article 25(3) of the Rome Statute for disseminating coded messages through telecommunication broadcasts. However, the charges were vacated due to the lack of evidence. Crimes under International law are usually committed by a group of actors with a common purpose which may range from physically carrying out the crime to being complicit in the crime by hatching the plan, providing finances and ammunitions, etc. Due to this collective nature of the crime, various modes of liability were devised under international law. The Rome Statute under article 25(3)(a) through 25(3)(d) recognizes two modes of liability: – primary and accessorial liability. Under article 25(3)(a), three modes of liability are recognized- direct perpetration, joint perpetration or (co-perpetration) and indirect perpetration i.e., perpetration through another person. Roxin’s control theory of crime first  propagated  these modes of liability. Article 25(3)(c) deals with aiding and abetting of crimes and because it is in the nature of accessorial crimes, corporate officers can be easily brought within the ambit of 25(3)(c) and other secondary modes of liability. This piece aims on assessing how corporate officers can be made perpetrators under article 25(3)(a) as the threshold for proving a 25(3)(a) liability is the highest compared to the other modes of liability prescribed under article 25(3). In the Lubanga case, the ICC held that perpetration under Article 25(3) hinged on whether the accused had “control over the crime”, i.e, directly, jointly (co-perpetration) or indirectly. The Pre-trial chamber (PTC) in Lubanga enlisted the factors resulting in co-perpetration: – existence of a common plan, co-ordinated essential contribution, the requisite mens rea under Article 30 of the Rome Statute.  Further, indirect perpetration occurs when the perpetrator acts through an organizational apparatus. Thus, he is the “perpetrator behind the perpetrator” and this model is identified by its strict hierarchy and an element of easy replaceability within the apparatus. The former forms part of a horizontal control theory and the latter forms part of a vertical control theory both formulated by Roxin. Often, when used independently, these modes of liability were not capable of strictly capturing the elaborate nature of crimes. Therefore, the ICC combined these modes of liability to formulate the theory of indirect co-perpetration in the Katanga and Chui case. Here, the accused Katanga and Chui hatched a common plan to take over a village by acting through subordinate officers thereby, resulting in an indirect co-perpetration. The ICC combined the objective and subjective elements of both modes of liability and enlisted eight elements for the crime of indirect co-perpetration namely: -the existence of a common plan, co-ordinated essential contribution, organized power apparatus, control over the organization, automatic compliance by subordinate officers, satisfying the subjective elements of the crime under the Statute. This was coupled with the fact that the perpetrators must be mutually aware that an implementation of the common plan will satisfy the objective elements of the crime. This formula of indirect co-perpetration devised by the ICC takes the form of an inverted L shaped structure and serves as a progressive interpretation of pre-existing law. However, the elements set out by the ICC is tailored for the above-mentioned structure in Katnaga. Indirect co-perpetration might adopt different structures without necessarily satisfying the eight elements enlisted by the ICC in Katanga. However, most corporations with their extensive hierarchies can be better tried using the control/domination theory (Tatherrschaft) used in the Fujimori judgement (Peruvian Supreme Court). Here the will of the direct perpetrator is dominated by the indirect perpetrator through an organizational apparatus (organisationscherraft) and unlike the traditional theory of indirect co-perpetration, the direct perpetrators may not be absolved of liability. In such intricate hierarchies the control of the indirect perpetrator is due to the power structure in which they operate. The Organisationscherraft doctrine aims at imputing liability to the individuals who supervise and control the criminal enterprise (organisation). Thus, there can be an organisational domination of stages whereby control can be imputed. There can be different degrees of participation in an organisational apparatus. The first level comprises the main perpetrators who act at a leadership level by planning and organising the criminal event and exercises the highest degree of control. The second level comprises the mid-level hierarchy which exercises some degree of control albeit, not as extensive as the first level or main perpetrators. The third level comprises the section of people who physically carry out the crimes without exercising any control. This three-tiered criminal structure could be seen in the Fujimori judgement where the Court applied the Organisationscherraft doctrine. In Fujimori, the perpetrator devised a power structure with his aides to act against his opponents and was supported by various mid-level operators who helped in co-ordinating the crimes at a lower level and the actions were successfully carried out by the direct perpetrators. The Court in Fujimori laid various criterion for indirect perpetration through an organisational apparatus. These include- presence of a hierarchical organisation, an existing command over the organisation, the fungibility (interchangeability) of direct perpetrators, the direct perpetrator’s intention to commit the act and finally, the organisation should be detached from law. Though the Organisationscherraft doctrine has not yet found its way in the ICC, it can be used by the Court to import culpability on the leaders of the corporate officers who exercise control over the organisation i.e., the culpability is not merely limited to the high level organisers (The CEO’s and then CFO’s) but also the mid-level officers which cannot be adequately addressed by the traditional understanding of the Court on indirect co-perpetration. Thus, a shift to other theories such as the Organisationsherraft is needed to tackle the macro-crimes perpetuated by gargantuan corporations over a protracted period of time. About the Authors Aparimita is a final year student at the West Bengal National University of Juridical Sciences Kolkata. Through her work with human rights activists and lawyers, she has developed a keen interest in human rights law and policy. She also closely follows and has conducted research on issues relating to international criminal law, public international law, refugee law, migration law and humanitarian law. She has previously worked with Centre of Policy Research where she got insight into issues faced by indigenous tribes with respect to their land, and at chambers of Jawahar Raja where she worked extensively on queer issues, sexual harassment, domestic violence, trafficking and labour law. She has also previously written on issues on the overlap of human trafficking and international criminal law. Through moot courts, research projects and everyday reading, Aparimita has nurtured an avid interest in rights-based approaches to law and legal theory. Varsha Maria Koshy is a final year student at the West Bengal National University of Juridical Sciences, Kolkata. She takes keen interest on various aspects of international criminal and humanitarian law and has written on various issues on the same.  She has previously interned with the Human Rights Commission and the Centre of Policy research which gave her broadened her exposure on various socio-legal issues.

Article by Eleni Anagnostopoulou The art world is notorious for its secrecy. Sellers are seldom revealed to the public. “European private collector” is probably the most specific an auctioneer is going to get when describing the seller or the buyer of a piece of art worth millions of dollars. This is no accident. People of the art world have been fighting for years to maintain this much coveted privacy. Their claims are not completely irrational: fear that they will become a target for thieves -and tax authorities-, unwanted publicity and media coverage in private estates are just some of the valid concerns that slowly but steadily crafted this idiosyncratic “omerta” in the art world, a characteristic no other industry dealing with such large amounts of money could ever dream of achieving. This is not the only element that makes the art dealings susceptible to money laundering attempts. Another very important aspect is the payment methods accepted in auctions. Most big auction houses accept payment in the form of debit or credit card, checks or bank transfers , but that is not the rule. In most auctions, a cash payment is acceptable, even preferred, since there is no room for default. This means that any anonymous buyer can use a middle man to pay very large amounts of money in cash, no questions asked. Both the United States and more recently the European Union have special provisions requiring all cash transactions over a certain amount (7,500 euros and 10,000 $ respectively) to be reported, but these reports are seldom followed-through by a detailed investigation, unless there are other suspect elements in the transaction. Another aspect of the art market that turns it into a money laundering haven? It completely unpredictable and its products are easily transportable. Indeed, no one knows what may cause a painting’s price to sky-rocket overnight, unlike the real estate market, for example, where price alterations are fairly predictable. What’s more, art is easy to move and easy to hide. A masterpiece may very well be hiding in a completely inconspicuous basement. The people of the art world have been constantly denying allegations that their industry presents a great opportunity for money laundering, however history has repeatedly proved them wrong. A recent example is the collapse of the Knoedler & Company Gallery in New York, which was taken down when police found out that more than 80 million dollars was turned over by collectors to purchase fake pieces, created by the art dealer’s boyfriend. In other parts of the Big Apple, the victims of the frauds of the disbarred lawyer Marc Dreier are still fighting in courts to recover over 700 million dollars embezzled or stolen by Dreier. How is this connected to the art world? Well, Dreier managed to launder hundreds of millions of dollars by purchasing artworks. These are precisely the kind of incidents that sparked a conversation about the need for transparency and accountability in the art world. The House of Representatives came up with a proposal aiming to mitigate the damages without completely altering the current economic model of the art market: the extension of the Bank Secrecy Act to the Arts and Antiquities Market. Should the amendment pass, it would require art sellers to keep records of cash purchases and file reports against suspicious activity and abnormally high transactions exceeding $10,000. Dealers who sell at least $50,000 of goods also have to report their records to the government. The proposed amendment is currently under consideration by the House of Representatives, but it has been met with fierce opposition by the art world. Art experts claim that such provisions would crush their clients’ privacy, an element of vital importance to the survival of art auctions. In fact, the Art Dealers Association of America completely dismissed the idea that money laundering is actually taking place in the art world, through their spokeswoman, Lily Mitchem Pearsall. Another argument being made is that this extension basically forces even small businesses of the art world to be subjected to the BAS’s provisions, thus being forced to comply with all its requirements which could in turn result in their complete financial destruction. The points raised by spokespeople for the art world are valid, however they don’t seem to be as pressing as the goal the extension of BSA is aiming to achieve. Yes, the lack of complete privacy might rock the art market at first, but BAS’s provisions do not require for a mass publication of art sales. They simply require that a record be kept in the relevant bureau so as to keep track of large transactions. This might be a hit to the previously completely impenetrable veil of secrecy in the art market, albeit it is a reasonable one. As far as the small business argument is concerned, it not really supported by facts. The BSA was extended to the previously unregulated jewelry and numismatic markets in the past, without causing a domino effect in the business. In fact, these markets remain quite profitable. The extension of the BSA to the art and antiquities markets is a very reasonable measure, which could actually be an effective solution to a very big problem. It can indeed be the first step towards effectively combatting money laundering in the art world, if it manages to overcome two great obstacles: passing through the House and convincing the art world to actually enforce it. BIO Eleni Anagnostopoulou is a practicing lawyer and journalist from Athens, Greece. Having completed her LL.B. and LL.M. in Contract Law in the National and Kapodistrian University of Athens, she is currently enrolled in the LL.M. program of Berkeley. She specializes in Media and Technology Law and is fascinated by the interaction between art, speech, expression, creativity and the law.

Article by Kevin Cacabelos Colombian jurist and diplomat Iván Velásquez will deliver the keynote speech at the annual Stefan A. Riesenfeld Symposium presented by the Berkeley Journal of International Law on March 1, 2019. Velásquez is the current head of the International Commission against Impunity in Guatemala (CICIG). Born in Medellín, Colombia, Velásquez studied law at the University of Antioquia in Medellín. From 1991 to 1994, Velásquez worked as the Deputy Prosecutor for Antioquia where his work included investigations into torture, extrajudicial executions and abuses against the civil population. In 1996, he worked as an assistant magistrate in the state council and was elected the Regional Director of Prosecutor’s Office in Medellín from 1997 to 1999. As a prosecutor, his investigations identified 43 shell companies and 495 bank accounts in the departments of Antioquia and Córdoba that paramilitary groups used to store more than 25 billion pesos. He eventually was elected to be an auxiliary magistrate of the Colombia Supreme Court of Justice in 2000. Between 2006 and 2012, Velásquez led the Investigative Supportive Committee of the Criminal Chamber. This committee investigated the corruption between members of Colombia’s Congress and the paramilitary, eventually ending in the sentencing of approximately 50 members of Congress. The investigation found that the paramilitary groups controlled health services, public contracts and local community governments. During this work, Columbia’s secret police, “El Das” closely monitored Velásquez’s activities, resulting in close surveillance and harassment of him, his family and people close to him. In 2006, the United Nations (UN) created the CICIG, an independent body established through an agreement between the Guatemalan government and the UN. The CICIG’s mission centered aroundridding Guatemala of organized crime that infiltrated the Guatemalan government. As an independent international body, the CICIG mandate allows it to conduct independent investigations, to act as a complementary prosecutor and to recommend polices to combat the criminal groups involved in its investigations. Mike Allison, a Central America specialist from the University of Scranton stated that the CICIG “grew into one of the most effective arsenals in the fight against corruption and impunity in the region … It was often talked about as a model that could perhaps be exported to Honduras or El Salvador.” In 2013, UN Secretary-General Ban Ki-moon appointed Velásquez as the CICIG Commissioner. Under Velásquez’ leadership, the CICIG uncovered corruption schemes that include a customs racket that resulted in the conviction of former Guatemala President Pérez Molina, the manufacturing of fake passports, the creation of “phantom congressional jobs,” and the “siphoning of funds” from the capital’s bus system. In September 2018, Guatemala President Jimmy Morales announced his decisions to prohibit Velásquez’s entrance into Guatemalan territory and requested the UN Secretary General to name a substitute head of the CICIG. Morales accused Velásquez for “attacking public order and security” and “affecting the governance, institutions, justice and peace of the country.” Morales is under investigation by the CICIG and the Guatemala’s Attorney General Office for alleged illicit campaign financing. Since the ban of Velásquez’s entrance into Guatemala, Guatemalan Foreign Minister Sandra Jovel met with UN Secretary General António Guterres and gave him a letter expressing Guatemala’s decision to terminate the agreement – a move that is feared to be a step towardstransforming Guatemala into dictatorship. Guterres rejected the termination and stated that the Guatemalan government is expected to “fulfill its legal obligations” under the agreement. Velásquez has continued to work outside of Guatemala in his efforts to lead the CICIG’s investigations. According  to news reports, Guatemala’s Constitutional Court has upheld the CICIG agreement in contravention of Morales’ wishes. In the midst of this flurry of activity, in November 2018, Velásquez received The Right Livelihood Award for his time with the CICIG. The Right Livelihood Foundation honored Velásquez alongside former Guatemalan attorney general Thelma Aldana “for their innovative work in exposing base of power and prosecuting corruption, thus rebuilding people’s trust in public institutions.” Velazquez emphasized the timely nature of receiving the reward, “This prize comes at a particularly dramatic moment in the fight against impunity and corruption … It is very important because it will turn the keys of the world to Guatemala.” In a press release, Velásquez found a fight against corruption to be central to guaranteeing human dignity, “Corruption is a crime against humanity and human dignity. The fight against it is the fight for a dignified life for all people and especially those who are marginalized.” Past recognition includes the International Bar Association’s 2011 World Human Rights Prize and the Association of German Judge’s 2012 recognition for his commitment to fight against impunity. “This is where I see myself until my dying day, devoted to the fight against corruption in all its aspects,” Velásquez said in a 2011 International Bar Association interview. “The dirt should be swept out from under the rug. I see myself as always trying to remove the dirt from under the rug.”

Article by Karin Bashir El Cid Butuyan’s journey, from his hometown in the northern province of Ramon, Isabela in the Philippines to serving as the former Head of a Unit at the World Bank Integrity Vice Presidency (INTVP), is an inspiring story of determination and passion for public interest. Butuyan received his Bachelors in Political Science in 1994 from the University of the Philippines and went on to pursue a law degree at the University of the Philippines College of Law graduating with distinction in 1999. After completing his law degree, Butuyan, driven by his passion for public interest, forewent lucrative opportunities in the private sector to clerk for the Supreme Court of the Philippines. And, in 2001, though only in his 20s, Butuyan served as a member of the Private Prosecution Panel contributing to the landmark impeachment of the former Philippine President Joseph Estrada for reasons of grand corruption. Butuyan’s commitment to fighting injustice and corruption did not go unnoticed. In 2003, Harvard Law School offered Butuyan an East Asian Legal Studies and Graduate Program Scholarship to pursue a Master degree in law (LLM). After graduating with his LLM in 2004, driven by his desire for international good governance and public accountability, Butuyan joined the World Bank at its headquarters in Washington DC. He began as Counsel in the Legal Department and played a critical role in the World Bank’s anti-corruption efforts and good governance reforms working on whistleblower protection and sanctioning of World Bank projects throughout the world. He then transitioned into a role as a senior litigation specialist at the World Bank, Integrity Vice Presidency (INTVP) and in 2014, he was appointed as Head of Investigations for East Asia and Pacific at the World Bank, INTVP. Butuyan continued his work investigating and prosecuting fraud and corruption in World Bank projects and after three years as Head of EAP, he entered into his current position as Head of the CDU division at the World Bank’s Integrity Vice Presidency. In addition to his transformative anti-corruption work at the World Bank, Butuyan has also assistedAfrican states in their anti-corruption efforts and Central Asian and Eastern European countries in advancing procurement reform. And, in 2016, Butuyan was appointed by the former President of the Philippines to be Competition Commissioner and help develop the newly established Philippine antitrust agency. Awards and Leadership In 2007, Supreme Court Justice Elena Kagan awarded  Butuyan’s Harvard’s Wasserstein Fellowship in recognition of his inspiring impact in the anti-corruption space and outstanding contribution and dedication to public interest. The award honors legal professionals who have used their education to advance social justice and invites the fellow to deliver lectures on public interest and mentor Harvard students. Butuyan also serves as Co-Chair of the ABA International Committee- Criminal Justice Section and is a law lecturer specializing in Transnational Corruption at Harvard Law and the University of Hawaii. Additionally, he is a founding Advisory Board Member of the Harvard Law and International Development Society (LIDS).

Article by Kerensa Gimre China’s One Belt, One Road initiative will expend more than $1 trillion on infrastructure in more than 60 countries. The plan has been characterized as a new Marshall Plan, albeit on a much larger scale. China referred to the initiative as “globalization 2.0.” The program intends to propel Chinese and global economic growth. Critics claim the initiative does not originate in good faith and is instead aimed to make countries and companies more dependent on China. Debt-Trap Diplomacy China stands to make considerable economic and military gains from the initiative. As China offers resources to developing nations, China’s influence will grow and countries that depend on China will be less willing to criticize China’s human rights abuses or check the proliferation of the Chinese military. Accordingly, diplomacy will suffer and the likelihood of international conflicts will increase. While these projects can be viewed as pioneering a new type of globalization or expanding China's military, increasingly these projects can be viewed through the strategy of “debt-trap diplomacy,” where China aims to “gain influence overseas by bankrupting its partners and bending them to its will.” As an individual country grows, China can bankroll a country’s infrastructural needs, giving millions of dollars in loans, while simultaneously designing, constructing, operating, and benefitting from the planned infrastructure. China gains increased access to natural resources and increased access to vital ports, fortifying Chinese military outposts and networks. Many of these loans are given to credit-poor countries who will never be able to repay China, essentially converting its economic loss into geopolitical gain. Debt crises as a result of Chinese expansion and infrastructure are imminent in Sri Lanka, Myanmar, Laos, Cambodia, and Pakistan. The former foreign minister of Australia stated that Laos and Cambodia are so indebted to China that they are now essentially “wholly owned subsidiaries of China.” As countries grow and expand their infrastructure, they are also turned into “new colonies” of China. China's Investment into Pakistan This expansion of Chinese power holds severe consequences for the world’s military powers. In 2018, the Trump administration withheld more than $800 million in aid to Pakistan, in an effort to pressure the Pakistani government to cooperate with the US. Withholding the money to increase cooperation has likely backfired, since only two weeks after Trump announced he was withholding $300 million from Pakistan, China and Pakistan agreed to a confidential plan to increase Pakistani production of Chinese military jets and weaponry. This development is consistent with increased cooperation between China and Pakistan, while Pakistani relations with the US have soured. Since 2013, China has spent more than $62 billion on projects in Pakistan, as part of the Belt and Road Initiative. It is likely that the Pakistan projects, in particular, have both military and economic advantages for China. China can use Pakistan’s convenient ports on the Arabian Sea to bolster its naval outposts, as it increasingly confronts the US and India at sea. As the US has reduced its aid to Pakistan, Pakistan has turned to China to build its infrastructure (including $46 billion in investment in electricity infrastructure) and supply the Pakistani government with needed funds. Even before the Belt and Road Initiative, Pakistan and China coordinated on the construction of a satellite network (to be launched in 2020) to replace the use of the American GPS network in the region. This move will significantly hamper the ability of US intelligence to monitor Chinese and other military activity in the region. Combined with China’s bolstered naval resources, this could lead to an increasing number of conflicts between the US, China, and India. Human Rights Concerns While the US retreats from the world stage, China is becoming a stronger leader, despite its problematic human rights abuses, state surveillance, and mass internment. Only two miles from where China plans to build the world’s “next Dubai” in Kazakhstan under the Belt and Road Initiative, China has incarcerated as many as 2 million people in more than 1,000 concentration camps. Benefitting from Chinese investment into its economy and infrastructure, Kazakhstan is in a poor position to challenge the human rights abuses happening just outside its borders. By failing to match Chinese investment in foreign countries, the US is losing influence abroad and is left unable to exert its influence on other countries to discourage China’s actions. As developing nations sign over ports, infrastructure, and debt they will never be able to repay to China, few countries will be able to restrict China’s expansion of military power or challenge China’s human rights abuses. By financing much-needed infrastructure, including electricity and transportation networks, China has bolstered its reputation and political influence in many developing nations. Through its One Belt, One Road initiative, China’s debt trap-diplomacy can result in both unchecked power and increased international conflict.

Article by: Francesco Arreaga The Dissolution of the INF On February 2, 2019, the United States (US) began the process of withdrawing from the Intermediate-Range Nuclear Forces (INF) Treaty. The Secretary of State announced that “unless Russia returned to full and verifiable compliance in 60 days, the United States would suspend its obligations under the Treaty.” Following the US’s policy change, the President of Russia also suspended Russia’s involvement in the INF Treaty. President Reagan and General Secretary Gorbachev signed the INF Treaty on December 8, 1987. The treaty required the US and Russia to eliminate from their military arsenal all ground-launched ballistic and cruise missiles with ranges of 500 and 5,500 kilometers, as well as any launchers and support equipment. However, for the past several years, Russia has not abided by the INF Treaty. In 2014 the US accused Russia of violating the treaty by testing ground-based cruise missiles and in 2017 Russia was accused of deploying a prohibited cruise missile. Russia’s continuous noncompliance with the INF treaty contributed to the US’ decision to withdraw from the treaty. The collapse of the INF treaty combined with the increased militarization around the globe increases the risk of armed conflicts between countries. According to the Stockholm International Peace Research Institute, world military expenditure in 2017 reached the highest level since the end of the Cold War. Moreover, the US, China, Saudi Arabia, Russia, and India all allocated over $60 billion to their respective armed forces in 2017. The US outspent every nation by investing $610 billion on its military forces in 2017. The Importance of the No First Use Act Considering how a global arms race is imminent, Senator Elizabeth Warren’s No First Use Act provides an important military position to prevent miscommunication between the US and its adversaries regarding nuclear weapons. The No First Use Act would make “US policy not to use nuclear weapons first.” Consequently, the US would be unable to initiate a nuclear attack, even if an adversary has already started a military conflict through a non-nuclear strike. Some may argue that a no first use policy disadvantages the US by preventing the country from using nuclear weapons while other nations still have the option of initiating a war against America with nuclear weapons. However, by communicating to the world that its domestic law prohibits the US from employing nuclear weapons first, the likelihood that adversarial states use a nuclear weapon first decreases. Adversarial states no longer need to be concerned that the US will initiate a preemptive attack with nuclear arms. Moreover, even if the No First Use Act is enacted into law, the US does not lose its nuclear deterrent. The mere possession of a nuclear weapon is enough to deter adversaries from using nuclear weapons because of the doctrine of mutually assured destruction. So long as a country that initiates an attack is unable to destroy all of the other country’s nuclear weapons in one strike, the country that has been attacked can retaliate with its own nuclear strike. Thereby, assuring mutual destruction. For this reason, it is important that the US maintain a strong nuclear triad so that it can always have an effective nuclear deterrent. Concepts such as nuclear deterrence and mutually assured destruction, however, assume that all international actors act rationally and fear their own destruction. This assumption may not apply to non-state actors such as terrorist organizations. This is especially true for non-state actors that have no fear of causing death to their own followers. As such, it is in the interest of all nation-states to prevent non-state actors from acquiring nuclear capabilities. With the collapse of the INF treaty, the increased militarization around the world, and the infringement on the US’ political sovereignty by Russia during the 2016 election, it is fair to say that the likelihood of armed conflict or a twenty-first-century cold war has increased. The challenges that the US faces in the area of foreign policy makes it imperative that the US makes strategic investments in research and development while also reemphasizing its commitment to the prevention of nuclear war by making it clear to its adversaries that it will not initiate preemptive nuclear strikes.