How Not to Read the Comoros Review Decision (Updated Twice)

by Kevin Jon Heller

Here is the first sentence of Avi Bell’s new editorial in the Times of Israel:

The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered the ICC Prosecutor to pursue an investigation she has decided to close.

Nope.

You’d think a law professor might make an effort to understand the Comoros review decision before breathlessly intoning “The ICC Declares War on Israel.” And you’d think a major Israeli newspaper would avoid publishing an editorial that can’t make it past the first sentence without making a fundamental — and painfully obvious — mistake.

You’d be wrong on both counts.

UPDATE: Not wanting to be outdone in terms of blatant wrongness, the Council on Foreign Relations and Newsweek have each published an article by Elliott Abrams that makes the same erroneous claim as Bell — one that, not surprisingly, cites Bell’s Times of Israel blog post. Welcome to the right-wing echo chamber.

UPDATE 2: Here is Bell’s thoughtful response to my pointing out that the very first sentence of his blog post contains a substantive error concerning the review decision:

Over the years, I have found Kevin’s comments to be not simply inane and rude, but also a distraction, and not worth responding to. I have made the mistake in the past of trying to engage him on the substance, but have never had any success in getting him to address the issues, since Kevin is unable or unwilling grapple with any law or fact that shows him or his ideology to be mistaken. Kevin’s standard comment is comprised of one or more insults of his opponent while dodging the substance, and his inevitable response to finding himself in a position he cannot defend (generally related to his antipathy to the Jewish state) is to try to shift attention to some tangential triviality. I will not be taking the bait. All the best to you, Kevin.

Notice the one thing that Bell doesn’t say — that I’m wrong. Perhaps he believes the difference between asking the Prosecutor to reconsider her decision not to investigate and ordering her to open a formal investigation is a “tangential triviality.” I doubt most people would agree.

http://opiniojuris.org/2015/07/18/how-not-to-read-the-comoros-review-decision/

28 Responses

  1. Half-truths and outright falsehoods are so much more effective for the purpose of political demagoguery. It is simply far easier to make the case that they are out to get you when you aren’t constrained by facts.

  2. Bell has been published in the following law reviews – Cornell, Virginia, Michigan, UPenn, Chicago, Stanford Yale and Columbia. Maybe you Heller are wrong in your understanding not Bell.

  3. Re: Bell has been published in the following law reviews – Cornell, Virginia, Michigan, UPenn, Chicago, Stanford Yale and Columbia. Maybe you Heller are wrong in your understanding not Bell.

    No the Judges simply said there was a conditional mandate to investigate in article 53 and that they were requesting that she reconsider her decision not to do so due to material errors contained in her earlier written decision. She still has the option to respond in ways other than launching an investigation.

  4. Yeh_right,

    I’ve published in equally impressive law reviews and published books with Oxford University Press. So does that mean both Bell and I are right?

  5. FWIW – The Times of Israel is not a major Israel Newspaper…

  6. “Israeli”, of course

  7. Regardless of the content of Avi Bell’s post, it’s still a blog post and not an editorial, so I think you should focus on the content rather than the platform where pratcially anyone can publish an op-ed about anything (with some minor legal restrictions).

  8. Over the years, I have found Kevin’s comments to be not simply inane and rude, but also a distraction, and not worth responding to. I have made the mistake in the past of trying to engage him on the substance, but have never had any success in getting him to address the issues, since Kevin is unable or unwilling grapple with any law or fact that shows him or his ideology to be mistaken. Kevin’s standard comment is comprised of one or more insults of his opponent while dodging the substance, and his inevitable response to finding himself in a position he cannot defend (generally related to his antipathy to the Jewish state) is to try to shift attention to some tangential triviality. I will not be taking the bait. All the best to you, Kevin.

  9. IR,

    Thanks for the correction. Still, you’d think the Times of Israel would care enough about its reputation that it wouldn’t allow bloggers to make such obvious mistakes.

  10. Bell does not say, as you suggest, that the PTC told the OTP to reopen the investigation. Rather, he wrote “to pursue” an investigation, which would seem to include reexamining whether to reopen one. Seems fair enough for popular press.

  11. It also bears noting that a “request” by the PTC to reconsider is in effect an “order” to reconsider under Art. 108(2) of the Court’s rules. But such details can be elided in a popular article, and I think the term “pursue” covers this mixed mandatory/permissive situation.

  12. “Pursue”: “continue or proceed along (a path or route).”

    So when Bell says the PTC ordered the OTP to pursue an investigation, he actually means that the PTC ordered the OTP to consider investigating, but without any obligation to do so. And the readership of the Times of Israel, who know nothing about the Rome Statute, would interpret his statement that way.

    Got it.

  13. have i missed something or are there no substantive “corrections” of Bell’s post. what did he get wrong?

  14. Did you miss the part where Bell claimed that the PTC ordered the OTP to pursue the investigation, even though (1) the PTC did not have that power, and (2) the PTC in fact only asked the OTP to consider doing so?

  15. Persue: “continue to investigate, explore, or discuss (a topic, idea, or argument).”
    Sounds right

  16. Really KJH – equally prestigious than T14 US law schools? Please tell us what you published in – and please I wouldnt count so strongly Oxford law journals you know the peer review nononsense. I submitted a paper to a UK based peer review journal and it was rejected within HOURS the EIC said it wasnt worth sending out. But…after I sent it out to US law schools I rec’d an offer (which I accepted) plus board reviews at several top T14 school journals. I checked the EIC publications and it seems he had taken the opposite position so his decision not to send my paper out to peer review was (it seems to me) based upon his own prejudices. In another example – I submitted to a peer review journal which accepted an article “subject to revision.” Funny, the only revisions that were “acceptable” were the journals I cited to of – although anonymous – must have been the peer reviewer. I figured this out after several cites to a proposition of “other” authors were rejected. So you can take your UK-Oxford journals and the supposedly “high level” peer review process and … I will stand by the US system and the objective academic process of the US system and thus Bell’s publications in the T14 schools outranks your Oxford stuff.

  17. Eugene, I find the construction you are supporting ad your reasons for supporting it rather baffling. Surely when writing for a popular audience we should avoid over-broad language?

    An order to reconsider a decision whether to open an investigation is just that. It might also (as a purely formal matter) fall within the range of meanings denoted by “pursue an investigation”. But the meaning an an ordinary reader will take away from the phrase “pursue an investigation” is clearly not “reconsider a preliminary decision whether to open an investigation”.

    An over-broad use of language is apt to mislead and alarm. The distinction is far from trivial if it leaves readers with the impression an investigation is inevitable or has been ordered. Which it does.

  18. Yeh_right,

    In case you missed it, I was mocking your argument that we should determine who has the better of a factual dispute by comparing CVs. But for the record, you should read more carefully: I said books for Oxford University Press, not articles for Oxford University Press journals.

  19. Re: UPDATE 2.

    What a douche!

  20. KJH

    You are trying to bluff your way through this but we can all see it for what it is.

    I never said that we should reject your view based upon your publication record. It is still impressive despite relying on the inferior (see below) peer review process. Bell’s T14 law journal publications are impeccable.

    My point is that you mocked Bell and made it sound like he was an academic lightweight. Nothing could be further from the truth. Therefore, I would not dismiss Bell as summarily as you do. You seemed to enjoy mocking him and relished it.

    So your response to my pointing out the flaws in peer review articles is that while your journal articles are peer reviewed (and this subject to the political self-interest) you also have “books” published through Oxford. Well it seems like the books are the subject to the same “peer reviewed” approval process.

    https://global.oup.com/academic/authors/submissions/?cc=il&lang=en&

    I also understand that in the peer review process you can “suggest” peer reviewers – ??? Is this true? So one can “suggest” people one knows will be partial to approving because the author cites to them in the paper or suggests personal friends or known political sympathizers? Is this accurate? If so, any peer-reviewed articles can be nothing more than a sham.

    KJH – is this your publication record? Do you suggest peer-reviewers who agree and sympathize with your views and then you get published and brag about your academic qualifications?

    Have you ever recommended peer reviewers for any of your journal articles or book? If so, please identify each one.

    We are waiting your response.

  21. Yeh_right,

    Tell you what: you tell me what your real name is, instead of commenting anonymously using a fake email address, and I will answer every one of your questions, irrelevant though they may be.

    I never said Bell was an academic lightweight. I said he was wrong about the Comoros decision and should have read the decision more carefully. He was and should have. No number of entries on his CV can change that.

    PS: Good luck convincing people that publishing a book with Oxford University Press doesn’t mean anything, because authors can suggest peer reviewers.

    PPS: I’m also kind of in awe of the fact that you think peer review is inferior to the “objective academic process” of having second- and third-year law students choose articles.

  22. Since when does one’s email address bear upon the validity of one’s argument? Surely you have a real response to my points or are you just ducking?

    I find it revealing that you will not deny outright that you have suggested peer-reviewers for your peer-reviewed scholarly endeavors.

    We will take silence as an admission – it seems that it is accepted practice in peer review land.

    As to your jab at the USA system, the USA T14 law school publishing of Bell is superior to yours. I rank law journals from Chicago, UPenn, Virginia, etc, as superior indicators of scholarship than a system whereby a peer reviewed journal EIC simply rejects a paper because he/she does not agree with it or where I can get my “peer reviewed” paper published if I cite to the papers previously published by the “right” peer reviewers – who surprise surprise I suggested.

    Again I am not minimizing the peer review system it can and does produce great work but dont mock Bell and his T14 record.

    Bell made a valid point that many scholars agree with such as EK.

  23. Yeh_right,

    My CV is publicly available; I have no way of checking anything that you claim. So I’ll take your hiding behind anonymity as a reason not to engage with you further. Further comments unrelated to the substance of the post will be deleted.

  24. Kevin –

    Leaving aside the ontology of “order,” the elephant in the room is Bell’s noting that:

    ” I have made the mistake in the past of trying to engage [you] on the substance, but have never had any success in getting [you] to address the issues”

    It has been five years since you assured us all of a response to Bell’s detailed comments here:

    http://opiniojuris.org/2010/06/02/why-is-israels-blockade-of-gaza-legal/

    As Bell accurately noted:

    “I notice that you have no answer to my points 1, 2, 3, 4, 5 (second time – apologies for the misnumbering), 6, or 7. I appreciate that you appear not to have great respect for me, but perhaps you can respond directly to these issues.”

    http://opiniojuris.org/2010/06/02/why-is-israels-blockade-of-gaza-legal/

    As this is the broader topic at hand, now would be an opportune time to address substance.

    At any rate, I am happy to look at the meaning of the term order. In your facebook comment, you note:

    “Bell can’t even be bothered to get the most basic facts right. The PTC did not “order[] the ICC Prosecutor to pursue an investigation she has decided to close.” It did not have that power. It simply asked her to reconsider her decision. She is under no obligation to do so”

    Yet, the colloquial use of the term (and we would most certainly expect colloquial language in an op-ed for mass consumption) most certainly does not imply that the one ordering is in a position of authority: “the child ordered his mother to bake him cookies.” Given the greater context of Bell’s piece, the term, if anything, is used in this colloquial ironic sense.

  25. Matt M.,

    Thank you for making my point! Sometimes an order is just a request — like here, given that the PTC does not have the power to order the PTC to investigate. That is precisely why Bell is so mistaken when he claims the PTC ordered the OTP to pursue the investigation. The PTC is much closer to a child who wants cookies than — as Bell sees it — a military commander demanding the OTP help him destroy Israel. I’m glad you understand the decision better than Bell!

    I appreciate your support.

  26. No. I am suggesting that Bell probably used the term colloquially NOT in the authoritative-subordinate sense. There is not sufficient evidence that he used the term incorrectly, and given the overall tone, substantial contextual evidence that he did use the term in an acceptable fashion.

  27. Yes, nothing suggests the “ICC Declares War on Israel” quite like a decision requesting the OTP to consider re-opening an investigation while acknowledging they are under no obligation to do so…

  28. Hi Kevin

    I have read a few of your blogs and am thinking about starting to contribute on here perhaps.

    I have found your commentry to be insightful, interesting and well balanced given your heart appears to favour one side over the other, which is an admirable trait that I personally value very highly.

    I also read Bell’s article and found that too to be interesting.

    When I read Bell’s article, I found the distinction between a “non-binding” ruling publically stating the judges believe the prosecutor had got it wrong and should change his mind and prosecute, vs a “binding” ruling to the same effect of very little substantive relevance particularly given that in my understanding, the boundary between “non-binding” and “binding” in international law can often be foggy and complex in any event.

    Instead, the substance of Bell’s comments seemed to me to be regarding the partial attitudes and approach of the ICC’s judges regarding Israel relative to other nations. Whether the form of expression of the Judge’s approach for Israel is technically binding on the prosecutor or not did not seem to me to make any difference whatsoever on the substance.

    So I agree with you that Bell’s wording was misleading, and I agree also with Bell that this is in no way a material mistake of substance. In my mind, it therefore falls under the same catagory as “typos”.

    I would be very interested to hear your views on the main substance of Bell’s argument and whether you actually disagree with Bell’s main conclusions.

    Thanks again for your interesting contributions on this topic.

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