17 Jul The Pre-Trial Chamber’s Dangerous Comoros Review Decision
In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.
To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.
At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.
The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:
23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.
These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.
To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.
The PTC’s approach to “potential perpetrator” gravity is simply bizarre. In the context of a typical situation involving large numbers of perpetrators and crimes, it would make little sense for the OTP to build a specific case around a crime committed solely by the least important perpetrators imaginable. But that is not even the issue regarding the IDF attack on the Mavi Marmara. The issue here is whether the Comoros situation as a whole is so grave that the OTP should prioritise formally investigating it over formally investigation the situations in Afghanistan, Georgia, Colombia, etc. At this level — at the level of situational gravity — the PTC’s interpretation of “most responsible” makes no sense at all. Imagine two situations based on the scenario above. In Situation 1, the low-level soldiers acted alone. In Situation 2, the low-level soldiers executed the civilians because their superiors ordered them to. According to the PTC, there is no gravity difference between an OTP investigation focusing on the low-level soldiers in Situation 1 and an OTP investigation focusing on the superiors in Situation 2, because in each situation the OTP would be investigating the individuals “most responsible” for executing the civilians. That defies common sense. To have any meaning at all, the “potential perpetrator” gravity factor must focus on the importance of the perpetrators relative to the hierarchy of their state or organisation; it cannot focus solely on their importance relative to the crime committed.
This seems obvious — at least to the OTP and to me. So why doesn’t it seem obvious to the PTC? The answer, I would suggest, is that Comoros isn’t the typical situation in which the large number of perpetrators and crimes means that the OTP could pursue literally hundreds of different cases. It is essentially a situation that involves at most one case — involving the individuals responsible for the attack on the Mavi Marmara. Situational gravity thus looks very much like case gravity, making it tempting to ask only whether the case in question is sufficiently grave to justify prosecution. But that is not the issue. Again: the issue is whether the Comoros situation is sufficiently grave relative to other situations to justify a formal investigation. And it is difficult to answer that question in the affirmative, given the OTP’s findings concerning the relative unimportance of the individuals responsible for the crimes on the Mavi Marmara.
The PTC’s approach to “potential perpetrator” gravity would thus seems to be based on a basic misunderstanding of the difference between situational and case gravity. And indeed, the PTC then makes its misunderstanding explicit when it discusses the “scale of the crimes” gravity factor. Here is what the PTC says:
26. The Chamber notes that the Prosecutor and the Comoros essentially agree on the numbers of victims of the identified crimes. In the view of the Chamber, ten killings, 50-55 injuries, and possibly hundreds of instances of outrages upon personal dignity, or torture or inhuman treatment, which would be the scale of the crimes prosecuted in the potential case(s) arising from the referred situation, in addition to exceeding the number of casualties in actual cases that were previously not only investigated but even prosecuted by the Prosecutor (e.g. the cases against Bahar Idriss Abu Garda and Abdallah Banda), are a compelling indicator of sufficient, and not of insufficient gravity. The factor of scale should have been taken into account by the Prosecutor as militating in favour of sufficient gravity, rather than the opposite, and in failing to reach this conclusion, the Prosecutor committed a material error.
Here the PTC explicitly compares the gravity of the Comoros situation to the gravity of one case within a situation. The number of victims in the Comoros situation is indeed comparable to the number of victims in the JEM attack on the UN peacekeepers in Darfur. But the Abu Garda and Abdallah Banda case was one of many cases within the Darfur situation; when we compare the number of victims in the Comoros situation to the Darfur situation as a whole, it is clear that the PTC has no basis whatsoever to insist that the “scale” factor counsels in favour of finding the Comoros situation grave enough to formally investigate. The comparison is then between 10 civilian deaths and hundreds of thousands.
Two final points. To begin with, it’s important to note that the PTC’s flawed decision was only possible because the OTP took the ill-advised step of releasing a 61-page document explaining why it had decided not to formally investigate the Comoros situation. Recall what I wrote last November:
As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.
Had the OTP not produced such a lengthy declination decision, the PTC would have had nothing to review — and thus nothing to second guess. I’d hate to be the legal officer who sold Fatou Bensouda on the idea that the OTP should explain its reasoning in such detail. I doubt the OTP will repeat its mistake in the future. And that’s a shame in terms of ICC transparency.
But even here we have to single out the PTC for criticism. Nothing in the Rome Statue compelled the PTC to engage in such micromanagement of the OTP’s situational-gravity analysis. Indeed, Judge Kovacs’ dissent persuasively argues not only that the PTC did not have to address the merits of Comoros’ application for review (¶¶ 2-5), but also that the majority adopted an inappropriately restrictive standard of review (¶¶ 7-8):
7. The Majority introduced for the first time a standard for reviewing negative decisions undertaken within the ambit of article 53(1) without explaining the legal basis for its endorsement. In this respect, and regardless of the practicality or validity of applying the standard of review endorsed by the Majority, I do not believe that the Pre-Trial Chamber is called upon to sit as a court of appeals with respect to the Prosecutor’s decisions. Rather the Pre- Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation on the basis of the criteria set out in article 53(1) of the Statute.
8. This view calls for a more deferential approach when reviewing the Prosecutor’s decision on the basis of the criteria set out in article 53(1), and is implied in the text of article 53. It provides the Prosecutor with some margin of discretion in deciding not to initiate an investigation into a particular situation. This interpretation is more in line with the main idea underlying article 53 namely, to draw a balance between the Prosecutor’s discretion/independence and the Pre-Trial Chamber’s supervisory role in the sense of being limited to only requesting the Prosecutor to reconsider her decision if necessary. To argue that the power of the Pre-Trial Chamber exceeds this point is daring. The Majority does not go in this direction. Instead, it preferred to conduct a stringent review, which clearly interferes with the Prosecutor’s margin of discretion.
Had the majority adopted an “abuse of discretion” standard of review, it would not have been able to engage in the kind of second-guessing that characterises the Comoros decision. And more importantly, the decision would not provide the OTP with a powerful incentive to avoid explaining its reasoning concerning situational gravity in the future — thereby promoting both prosecutorial discretion and transparency.
In the end, though — and this is a critical point — the PTC seems far more interested in maximising its own power (a recurring problem) than protecting prosecutorial discretion. Consider the following paragraphs (emphasis mine):
13. The question that is asked of the Prosecutor by article 53(1) of the Statute is merely whether or not an investigation should be opened. The Prosecutor’s assessment of the criteria listed in this provision does not necessitate any complex or detailed process of analysis. In the presence of several plausible explanations of the available information, the presumption of article 53(1) of the Statute, as reflected by the use of the word “shall” in the chapeau of that article, and of common sense, is that the Prosecutor investigates in order to be able to properly assess the relevant facts. Indeed, it is precisely the purpose of an investigation to provide clarity. Making the commencement of an investigation contingent on the information available at the pre-investigative stage being already clear, univocal or not contradictory creates a short circuit and deprives the exercise of any purpose. Facts which are difficult to establish, or which are unclear, or the existence of conflicting accounts, are not valid reasons not to start an investigation but rather call for the opening of such an investigation. If the information available to the Prosecutor at the pre-investigative stage allows for reasonable inferences that at least one crime within the jurisdiction of the Court has been committed and that the case would be admissible, the Prosecutor shall open an investigation, as only by investigating could doubts be overcome. This is further demonstrated by the fact that only during the investigation may the Prosecutor use her powers under article 54 of the Statute; conversely, her powers are more limited under article 53(1) of the Statute.
14. The Chamber recognises that the Prosecutor has discretion to open an investigation but, as mandated by article 53(1) of the Statute, that discretion expresses itself only in paragraph (c), i.e. in the Prosecutor’s evaluation of whether the opening of an investigation would not serve the interests of justice. Conversely, paragraphs (a) and (b) require the application of exacting legal requirements. This is not contradicted by the low evidentiary standard of article 53(1)(a) of the Statute, or by the fact that an analysis under article 53(1)(b) of the Statute involves potential and not actual cases.
It will be the rare situation indeed that does not satisfy Art. 53(1)(a) and Art. 53(1)(b). How many non-frivolous referrals do not contain allegations of at least one crime within the Court’s jurisdiction? And how many situations will fail gravity analysis in light of the PTC’s insistence that a situation involving only low-level perpetrators and less than a dozen deaths is grave enough for a formal investigation? If allowed to stand, then, the PTC’s decision will force the OTP to either open formal investigations into literally dozens of situations (including all of the current situations it is preliminarily examining) or decline to investigate specifically on the basis of interests of justice — the one criterion, according to the PTC, where it maintains considerable discretion. Given the OTP’s evident resource limitations, that is not really a choice.
And therein lies true danger of the PTC’s Comoros decision. Recall what I said earlier: when the OTP declines to open a formal investigation because a situation does not include a crime within the Court’s jurisdiction or because the situation is not adequately grave, the PTC can only request the OTP reconsider its decision not to investigate. The current decision is an example. But when the OTP declines to open a formal investigation because such an investigation would not be in the interests of justice, the PTC can demand the OTP reconsider. In practice, then, the Comoros decision will force the OTP to decline to open investigations on the one ground that is always subject to “hard” review by the PTC.
Put more simply: if the Comoros decision is allowed to stand, the PTC will have given itself final say over all OTP decisions not to open a formal investigation into a situation. That is fundamentally incompatible with the Rome Statute’s guarantee of prosecutorial independence, and it is not acceptable.
NOTE: I was asked on twitter whether the OTP can appeal the PTC’s decision. I assume it can, because the decision rejects the OTP’s understanding of gravity, which is an aspect of admissibility. Art. 82(1) of the Rome Statute provides that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… (a) A decision with respect to jurisdiction or admissibility.”
Thank you for this thorough analysis.
The PTC seriously fudged (an ICL term of art) a gravity opinion once already in one direction almost ten years ago, and it is doing it in the other direction this time. Hopefully the OTP will appeal so we are not left with this precedent.
And very hopefully the OTP will continue to explain their decisions despite the decision.
Kevin, on your last point: since article 82(1) Rome Statute starts by saying “[e]ither party”, wouldn’t this suggest that there must already be a case? After all, this suggests a plurality of parties, i.e. two parties, and it does not seem likely that the PTC is considered a party for purposes of appeal.
A second question: who actually takes decisions on jurisdiction and admissibility (subject to appeal)? Article 17 Rome Statute indicates that this is “the Court” and facially this covers the OTP; however article 19 Rome Statute refers to the Prosecutor and to the Court, which may suggest such decisions are not made by the OTP per se.
Kevin, thanks for your detailed analysis. I think you are spot on about case v. situational gravity. It seems relatively clear that the PTC failed to consider the distinction, but I wonder what the implications of this oversight actually are. While I agree with you that there is a major difference at a conceptual level, it does seem that, in specific instances, the distinction may be less important than in others. The Comoros situation seems like a paradigmatic instance (I don’t want to use the word ‘case’!) where these distinctions are less pronounced. If crimes are committed on a ship or in the territory of a micro-state (eg San Marino?), then don’t you think it is logical to compare things that are comparable, i.e. specific incidents/potential crimes committed in analogous circumstances? Don’t get me wrong, the conceptual distinction should be maintained, and the fact that the PTC missed it altogether is inexcusable. I am just wondering about the practicalities of engaging in a comparative assessment once we’ve cleared that hurdle, i.e. gotten the law right. I would be curious to get your thoughts on that. You go on to say: “the issue is whether the Comoros situation is sufficiently grave… Read more »
I would think that the parties here are the OTP and Comoros, not the OTP and the PTC. Presumably, Comoros would have been entitled to appeal if the PTC had ruled against it.
As for your second question, I have always thought the judges have the final say on jurisdiction and admissibility questions — such as whether Palestine is a state. After all, 19(3) specifically gives the OTP the power to seek rulings from “the Court” on those questions. Or am I misunderstanding you?
Patryk, I think you make a number of very important points. A few thoughts: 1. I agree that, in theory, there may be situations in which situational gravity could be assessed only through a comparison to specific cases. At a very minimum, though, there should be no larger situation into which the smaller situation could be folded. (Your micro-state example, perhaps?) The problem with the Comoros situation, as I’ve noted before, is that it is simply a backdoor attempt to get the OTP to investigate the Israel/Palestine conflict. If it does ever investigate, the OTP needs to focus on the larger situation — not on a tiny situation in which, conveniently, only one side has committed crimes. 2. I completely agree that the OTP’s gravity analysis is itself problematic, for all the reasons you mention. I was rather shocked by how easily it dismissed the idea that higher-ups could not be held responsible for the crimes on the Mavi Marmara; the PTC’s thoughts on that issue — especially the “live fire” from above — are by far the most convincing in the decision. I would have reached the OTP’s conclusion, but in a very different manner — one that emphasised… Read more »
After all the wonderfully Byzantine procedural debate, is is right or not that there should be some accountability for what happened aboard the Mavi Marmara?
Of course there should be accountability. The question is whether the ICC is the right place for it.
Thanks for the post Kevin . Well : ” one scroll , can’t have it all ..” yet , I was wondering simply : Have you ever heard of ” vicarious liability” ?? I mean , an official , can, and should be responsible , for crimes or torts of his agent , due simply to : Lack of training, lack or educating him (his agent). So , with all due respect , the Rome convention ( and other international laws ) specifically , prescribed that , a military commander , needs to be aware of possible outcomes , and prevent , crimes of soldiers , subordinated to him , so , article 28 to the Rome convention (” responsibility of commanders and other superiors” ) states clearly : a) “….. As a result of his or her failure to exercise control proper over such forces….” And more: ” (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; ” So, with all due respect, I find it incompatible, with that assumption, and fictitious example, you have posted , of… Read more »
Kevin: I take your point. However, the word ‘party’ would usually be used in relation to a treaty (or agreement), a case, or a dispute. The first meaning can be ruled out, the second is likely (at least taking into account direct context, suggesting decisions in relation to actual cases), whereas the third is possible.
This last does appear to fit with article 18 Rome Statute, especially since reference to a State here is cross-referenced to article 82; article 82 also mentions a State but in relation to a specific issue different from the one at issue in article 18; hence, party in article 82(1) must also include a State.
On my second question, I again take your point, but what I was wondering about is whether the PTC’s review and request for reconsideration can be argued to be “a] decision with respect to jurisdiction and admissibility” in the sense of article 82(1). Article 19(1) indicates that the Court may determine the admissibility of a case, but this article is concerned with challenges to the jurisdiction and admissibility by a State rather than claims in favour of such jurisdiction and admissibility.
[…] Law Professor Kevin Jon Heller has a scathing critique of the decision, The [ICC] Pre-Trial Chamber’s Dangerous Comoros Review Decision: […]
Re: “Put more simply: if the Comoros decision is allowed to stand, the PTC will have given itself final say over all OTP decisions not to open a formal investigation into a situation. That is fundamentally incompatible with the Rome Statute’s guarantee of prosecutorial independence, and it is not acceptable.” I’ve lost count of the number of experts who’ve claimed article 119 provides a right of action to challenge the Prosecutor’s decision to accept the Secretary General’s decision on the validity of Palestine’s accession. It must be acceptable to challenge these decisions too, since Rules 24-26 of the Court’s own Rules of Procedure and Evidence – read together with Article 46 of the Statute – have always allowed anyone at all to transmit to the Presidency (which may also initiate proceedings for removal from office on its own motion) a confidential complaint against the Prosecutor for the “grave breach of duty” incurred by “repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases.” All that’s required is an absolute majority of the Assembly of State Parties to agree, based upon the evidence, and the question of her independence becomes entirely moot. Re: “consider a hypothetical situation involving only… Read more »
[…] Law Professor Kevin Jon Heller has a scathing critique of the decision, The [ICC] Pre-Trial Chamber’s Dangerous Comoros Review Decision: […]
I think the OTP’s recent attempts at transparency regarding its decisions about whether to open a formal investigation have been enormously helpful, and I hope this decision does not cause them to revisit that policy. I don’t think it will, to be honest. Transparency is listed as a key strategic objective in the most recent OTP Strategic Plan (2012-2015), so I think it is something they are committed to.
Thank you for this thorough post. I am of two minds about this decision. On the hand, I completely agree with Kevin that the decision encroaches on the OTP’s independence. It is also very unfortunate that the PTC could not resist opining on the merits of the case. On the other hand, I am uncomfortable with the OTP making factual and legal findings with respect to responsibility for the attack where it has not undertaken an independent investigation and was unable to receive information from either Turkey or Israel. In any event, as Kevin notes, the PTC has merely requested that the OTP reconsider its decision, and the PTC does not have the power to order an investigation. Even if could force an investigation, it cannot compel OTP prosecutors to indict anyone. The OTP has opened investigations in the past without issuing indictments. So it would seem that we effectively have an advisory opinion from the PTC on its reading of Article 53 of the Rome State. I don’t think that the decision can be appealed under Art. 82 for the reasons Andre mentions, but even if it could, what does the OTP have to gain by appealing?
Presumably, the Comoros decision is an indication of how the PTC will approach gravity determinations, as well as the standard for opening a formal investigation, in the future. So how can the OTP not appeal?
I still do not understand why Art. 82 does not give the OTP the right to appeal the decision. There is a dispute here between Comoros and the OTP. The focus of that dispute is how the PTC should assess gravity, which is an aspect of admissibility. Art. 82 permits either party to appeal decisions that address admissibility.
I agree that the OTP is in an awkward position but since the PTC can only require it to investigate in one specific circumstance that we agree is not implicated here, I’m not sure what is to be gained by appealing.
In terms of why I don’t think the OTP can appeal, the Rome Statute conceives of admissibility in terms of cases, not situations. See in particular art. 17(1). The Rome State also does not bestow the OTP with the opportunity to challenge admissibility under art. 19 although it does allow the OTP to “seek a ruling from the Court regarding a question of jurisdiction or admissibility” which can likely only take place after the OTP indicts a specific person.
Thank you for the interesting post.
‘Accountability of the Mavi Marmara incident..’
The IDF commandos used lethal force to end the kidnapping of two of their fellow soldiers, one whom had been stabbed in the belly by the ‘humanitarian aid workers’,
Live fire was coming from the ship and directed at the commandos, to make matters worse.
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Opinio Juris » Blog Archive The Pre-Trial Chamber’s Dangerous Comoros Review Decision – Opinio Juris
Re: “The problem with the Comoros situation, as I’ve noted before, is that it is simply a backdoor attempt to get the OTP to investigate the Israel/Palestine conflict. If it does ever investigate, the OTP needs to focus on the larger situation — not on a tiny situation in which, conveniently, only one side has committed crimes.” As John Oliver says from time to time “How can this still be a thing?” There can’t be any doubt whatsoever by this point in time that the situation in Palestine involves crimes that are listed in the Rome Statute, which are of sufficient gravity to demand an investigation (if Article 53(1) contains a mandate to conduct one, as these Judges have suggested). It doesn’t require a vast expenditure of time or effort to locate prima facie video evidence on Youtube of the current Prime Minister of Israel and members of his party list standing on territory illegally annexed to Israel (Har Homa) after the Six Day War bragging about the on-going crimes he and his government have been instrumental in committing there and elsewhere beyond the armistice lines since his first term in office. Israel is a party to the armistice agreements… Read more »
If there was bias, was it not on the part of the PTC in deciding against prosecuting an egregious outrage, presumably because some nations are not to be touched?
Unless justice touches everyone, can it be justice?
By the way, Jackdaw says “Live fire was coming from the ship and directed at the commandos, to make matters worse.”
I am reminded of the notice in a zoo: “These animals are dangerous – if attacked they defend themselves.”
Isn’t that what the ICC will find: who attacked and who defended?
Mr Kevin Jon Heller, with all your expertise….you have no response ..at all.. to any of Hostage’s comments, not even partial??? Wow! Well, I know what that tells me. All I can say is a big thank you to Hostage.
[…] Jon Heller, over at Opinio Juris, has produced a first commentary of the reasoning of the judges and I will not rehash his points here, as I agree with all of them. […]
Re: Mr Kevin Jon Heller, with all your expertise …
Dr. J, I started reading and commenting at Opinio Juris primarily because of the great job that I think Kevin Jon Heller and his fellow bloggers do here. He and I have already discussed some of the issues I mentioned above here at OJ in the past. I’ve usually just posted comments in piecemeal fashion in response to some particular point raised in an article or comment made by someone else. This time, I thought it would be helpful to present a fuller more organized overview of the jurisdictional debate from the Palestinian or Comoros perspective on the situation.
I personally think that the points at issue are subtle differences of opinion and possible ways of examining the overall situation, not a major disagreement.
Hostage, thank you for that clarification. I respect that you took the time to explain, for my sake as well as other readers. It was indeed my irresponsibility and ignorance to react to the first article of Mr. Heller I’ve ever read and judge him the way I did. I am genuinely sorry, I do know better than that.
That said, the issues, points and differences of opinion you speak of have far reaching, large scale ramifications especially for the Palestinians, but also the region and entire world. I’m sure you realize more than I how huge such subtleties actually are. Needn’t be said that it matters when dealing with the most pivotal topic of peace in the world…that wars, death, destruction can result.
I still think Mr. Heller, from a professional point of view, owes his readers a response to your comments. No response is not a resolution, and it leaves deeply caring readers dangling.
It’s nearly 1:00 am in Melbourne, where I’m currently located, so I will post a substantive response to Hostage in the morning. In general, though, Hostage and I agree about the status of Palestine; when we disagree, it’s almost always over ICC procedure.
[…] seems that there should be a clear distinction between situational gravity and case gravity, and Kevin Jon Heller has made a strong argument to that effect, but in fact the Statute ties the two concepts closely […]
Mr. Heller, I am thankful in advance for your response to Hostage, and for addressing my concerns. Again, such disagreements over ‘ICC Procedure’ have major impact for Palestinians and the world. My profession is not law, nonetheless, I don’t see any ‘politics’ in the opinions expressed in Hostage’s comments regarding such procedures, rather I see interpretation of law with a high order of legal competence, knowledge, insight, understanding and thoroughness of detail. If your argument that the PTC decision is dangerous fundamentally because it involves politics over law, I don’t understand. So I very much look forward to reading your response.
Just to accomplish my dish of my comment above , have forgotten to insert additional provisions for the stated therein , so here : ” Article 83 — Dissemination 1. The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population. 2. Any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof. ” ( Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 ) So , one should read the whole above , with article 21 ( applicable law ) of the Rome statute , dictating so : ” 1. The Court shall apply: (a) In the first place, this Statute, Elements… Read more »
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Opinio Juris » Blog Archive The Pre-Trial Chamber’s Dangerous Comoros Review Decision – Opinio Juris