Author Archive for
Kevin Jon Heller

Political Pressure Succeeds! (Update on My Student)

by Kevin Jon Heller

I have happy news to report: after a groundswell of support, my student Tamara Tamimi has been granted a visa to attend her SOAS graduation. Apparently her Facebook post garnered more than 700 reactions, leading to letters and emails flooding into the Home Office. I want to thank each and every person who supported Tamara — whether through a letter, an email, or simply a retweet. And I want to give a specific shout-out to David Lammy MP, one of the brightest young stars in the Labour Party — and a graduate of SOAS law, I’m proud to say. His direct intervention on Tamara’s behalf was no doubt critical to Tamara receiving her visa.

The UK Is Preventing My Student from Attending Her Graduation

by Kevin Jon Heller

I opened Facebook just now to find the following post from my brilliant student at SOAS, Tamara Tamimi, whose MA dissertation — written under my supervision — received the law school’s award for the best MA dissertation of the year:

I am angry, frustrated and sad. I was denied entry clearance into the UK to attend my graduation from SOAS University of London. I finished my MA in Human Rights Law from SOAS, University of London ten months ago and returned to my homeland, Palestine. I decided to go through the trouble and expenses to attend my graduation for a number of reasons, including this burning desire to share the moment with my family and friends especially after I received the Sarah Spells Award by the SOAS School of Law for the best MA dissertation of the academic year. 

What was most exciting for me was that I was going to be standing on Thursday with the people I called family for a whole year and receiving my graduation certificate and celebrate the acknowledgment of the one hell of a work that bore fruits from the tediously long hours that I spent in the SOAS Library and UCL Main Library.

During the past couple of months I excitedly texted and talked to London friends and made plans for the five days my family and I were planning to spend in London. There were many things to be done: so many people to reconnect with in SOAS and the house I called home for a year and so many places to go to and take my family. I was getting more and more excited as my friends shared their plans: Amira and Giorgios were going to recreate another hellish night of cards against humanity at the ILSC and Scott was yet again hosting one of his crazy celebration milestone parties.

But the UK was “not satisfied” that I am “genuinely seeking entry for a purpose that is permitted by the visitor routes” and denied me entry clearance that would enable me to attend my own graduation, despite giving me two years ago a Chevening Scholarship to undertake my MA studies in SOAS. In doing so they are preventing me from spending time and celebrating my achievement with my family and friends. 

My graduation ceremony is Thursday the 27th… I will fight this injustice until the very end… fight with me and demand the UK to reverse this decision to deny me a visa to attend my own graduation by sharing my posts, writing to your MPs and mobilising the media… anything that you do will count.

This is appalling and unacceptable, but not surprising. Having ensured its increasing irrelevance on the world stage through the self-inflicted wound of Brexit, the UK is desperate to maintain good relations with any state that will trade with it, no matter how authoritarian or vicious — Saudi Arabia, Bahrain, the Philippines, Egypt, China… and, of course, Israel.

The UK can take away Tamara’s ability to attend her graduation. But they cannot take away her intelligence and passion. It was my honour to supervise her thesis, and SOAS was fortunate to have her as a student.

OJ Bloggers in Salim v Mitchell

by Kevin Jon Heller

As many readers are probably aware, the ACLU is currently bringing an ATS action against the two psychologists, James Mitchell and John Jessen, who allegedly designed and administered the CIA’s torture program. Here is the ACLU’s summary of the case, Salim v. Mitchell:

The CIA paid the two men and the company they later formed tens of millions of dollars over the next eight years [since 2002] to implement and refine the resulting program. Mitchell and Jessen designed the abusive procedures, conditions, and cruel treatment imposed on captives during their rendition and subsequent detention, devised the torture instruments and protocols, personally tortured detainees, and trained CIA personnel in administering torture techniques. In a clear conflict of interest later acknowledged by the CIA, the two men were also tasked with evaluating the “effectiveness” of the program from which they reaped enormous profits.

The plaintiffs in the case are Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of the late Gul Rahman, who died as a result of his torture. They are three of 119 victims and survivors of the CIA program named in the Senate torture report. All three were experimented on and tortured in accordance with Mitchell and Jessen’s specifications. All were subjected to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation – methodically administered with the aim of psychologically breaking their will.

The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute for their commission of torture; cruel, inhuman, and degrading treatment; non-consensual human experimentation; and war crimes.

I am not going to comment on the merits of the case. Instead, I want to let readers know that Opinio Juris bloggers are involved on both sides of it. I am the expert witness for the plaintiffs concerning the human-experimentation claim; Julian is the expert witness for the defendants on both the human-experimentation claim and the torture claim. You can find my declaration here, and Julian’s response here. We have also each submitted rebuttal declarations. Mine is here (scroll down to p. 48); Julian’s is here.

The New York Times published a long article about the case last weekend. It’s well worth a read.

William Bradford Fails Upward — and Is Still Lying About His Credentials

by Kevin Jon Heller

When last we met William Bradford, he had just published an article in the National Security Law Journal (NSLJ) accusing centrist national-security-law professors of treason and advocating prosecuting them for providing material support to terrorists. After many scholars, including me, pointed out that the article was both absurd and deeply offensive, the NSLJ repudiated the article. (Alas, the journal has since scrubbed the repudiation from its website.)

Bradford’s article was not his first brush with controversy He was forced to resign from Indiana University at Indianapolis after Inside Higher Education revealed that he had lied about his military service, falsely claiming, inter alia, that he had fought in Desert Storm and Bosnia and had won a Silver Star. Bradford then later resigned from West Point — whose decision to hire him still boggles the mind — after it came to light that he had falsely claimed that he had been an assistant professor at the National Defense University (NDU), run by the Department of Defense. According to the NDU, to quote the Guardian, “he was not a professor there, nor even a staff employee…. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.”

You would be forgiven for thinking that someone who has accused respected law professors of committing treason and who was forced to resign from two academic institutions for lying about his credentials might have a difficult time finding a new — and more important — position. But if you do think that, you have never met Donald J. Trump, for whom no one is too dishonest or too incompetent to hire. Because Trump has recently appointed Bradford to the be the Director of the Office of Indian Energy at the Department of Energy (DoE).

That’s appalling in and of itself. But the awfulness doesn’t end there, because Bradford is still lying about his credentials. Here is a screenshot of Bradford’s bio on the DoE website (in case the DoE reads this and decides to scrub it):

Notice the text inside the red rectangle: Bradford is still claiming to have been a faculty member at the NDU — the same claim that led to his resignation from West Point.

In any sane administration, Bradford would be fired in the next 48 hours. But this is the Trump administration, so I’m not holding my breath.

ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL

by Kevin Jon Heller

One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised “War Crimes: namely, violations of the laws or customs of war.” Article 3 of the ICTY Statute provides that “[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war,” while Article 4 of the ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.” And Article 8 of the Rome Statute criminalises “[g]rave breaches of the Geneva Conventions of 12 August 1949”; “[o]ther serious violations of the laws and customs applicable in international armed conflict”; [i]n the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949″; and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character.” In each and every case, war crimes are limited to violations of IHL.

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

The judgement itself addresses allegations that Ntaganda is criminally responsible for two war crimes — rape and sexual slavery — involving children forcibly recruited into his organised armed group, the UPC/FPLC. Ntaganda challenged that allegation, arguing that “crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.” The Trial Chamber (TC) disagreed, in a judgment ably discussed and critiqued by Yvonne McDermott. Ntaganda appealed, giving rise to this judgment. Here is the AC’s “key finding”:

2. Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group.

Before turning to the logic of the judgment, it is important to be very precise about the terms of my quarrel with the AC. I completely agree with the AC that there are situations in which a member of an armed force can, in fact, commit the war crime of rape or the war crime of sexual slavery against a member of the same armed force. As the AC rightly notes, although the Third and Fourth Geneva Conventions do not apply to acts committed by a combatant against someone from the same side of the conflict — whether by virtue of membership in that same armed force (GC III) or by nationality (GC IV) — the First and Second Geneva Conventions contain no such limitation:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Nothing in GC I or GC II suggests, however, that IHL protects all members of the armed forces against member-on-member violence. On the contrary, let’s take a look at the AC’s statement again, with the critical language in bold:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Under GC I and GC II, in other words, member-against-member violence violates IHL only if the victim is wounded, sick, or shipwrecked. If the victim is none of those things — if he or she is not hors de combat — that violence may well violate a state’s domestic criminal law, but it does not violate IHL.

If the AC had limited the scope of its judgment to rape and sexual slavery committed against child soldiers who were hors de combatdefined by the ICRC, in relevant part, as “anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness” — it would have been on firm ground. But that is not what it has done. On the contrary, the AC goes to great lengths to make clear that member-against-member rape and sexual slavery are war crimes even if the victim is an active combatant –– ie, one who is not hors de combat. Here is the relevant paragraph (emphasis mine):

64. With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

Notice the bold language, because it’s critical — and wrong. IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals. As we have seen, the AC itself acknowledges that limitation with regard to all four of the Geneva Conventions. It cites no other source of IHL, instead simply noting that the ICRC states in its new commentary to GC I “that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.” But that statement is incomplete and misleading, because the ICRC makes unequivocally clear that CA3’s prohibitions apply only to individuals who are hors de combat:

518  Subparagraph (1) covers all ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The article does not expand on these notions and this part of the article did not give rise to much discussion at the 1949 Diplomatic Conference. The protection afforded under this subparagraph requires that the person be in the power of a Party to the conflict (see section E.4).
519  The protection of persons not or no longer participating in hostilities is at the heart of humanitarian law. The persons protected by common Article 3 are accordingly described by way of explicit delimitations: ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’ (emphasis added). Parties to a non-international armed conflict are under the categorical obligation to treat these persons humanely, in all circumstances and without any adverse distinction.

The Trial Chamber’s judgment is no better. The TC rests its conclusion that member-against-member rape is a war crime even when the victim is an active combatant solely on two things: the Martens Clause and Art. 75 of the First Additional Protocol (AP I). Here is paragraph 47:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard, the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The Chamber additionally notes that the fundamental guarantees provisions [in Art. 75] refer to acts that ‘are and shall remain prohibited at any time and in any place whatsoever’ and as such apply to, and protect, all persons in the power of a Party to the conflict.

I don’t have time to get into a detailed discussion of the Martens Clause. Suffice it say here that it is very unlikely that the Clause can ever be relied upon to expand IHL not only beyond conventional law, but even beyond customary IHL — and as the AC itself acknowledges (para. 60), there is literally zero state practice indicating that member-against-member mistreatment is a war crime even when the victim is an active combatant. Even Antonio Cassese, no stranger to judicial activism, dismisses this “norm-creating” reading of the Martens Clause as “radical.” As he says, “[s]urely the Clause does not envisage — nor has it brought about the birth of — two autonomous sources of international law, distinct from the customary process.”

As for Art. 75 of AP I, the Protocol’s “fundamental guarantees” provision, the TC’s position is deeply problematic. Here is n. 111:

Article 75 of Additional Protocol I refers to ‘a Party to the conflict’ (emphasis added) and therefore does not limit the fundamental guarantees to persons in the power of the opposing party.

The TC conveniently fails to note that Art. 75 applies only to international armed conflict — and that Art. 4 of AP II, the “fundamental guarantees” provision in the NIAC Protocol, is specifically limited to “persons who do not take a direct part or who have ceased to take part in hostilities” (ie, civilians and combatants hors de combat).

Given that conventional IHL uniformly requires the victim of member-against-member mistreatment to be hors de combat, on what basis does the AC hold that the status of the victim is irrelevant? The answer comes from this paragraph (emphasis mine):

65. The Appeals Chamber agrees with the Trial Chamber’s finding that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law”. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

This is simply incorrect. To begin with, there is a specific rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: namely, the rule that says violence in member-against-member situations violates IHL only when the victim is hors de combat. The AC’s judgment suggests that states not only had to specify that rule in the various IHL conventions, they also had to add: “oh, and by the way, this limit means that mistreating active combatants doesn’t violate IHL.” But that’s silly: the former implies the latter. After all, expressio unius est exclusio alterius is a basic rule of treaty interpretation.

But even if that was not the case, there would still be a general rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: the rule that says a war crime must involve a violation of IHL. As noted at the beginning of this post, that is one of the most basic assumptions of IHL. Not all violations of IHL are war crimes, but all war crimes are violations of IHL. So the burden of proof was not on Ntaganda to show that rape and sexual slavery cannot be war crimes in member-against-member situations if the victim is an active combatant. The burden was on the prosecution to prove that such acts actually violate IHL. Because if they don’t — and they don’t, as we have seen — the Court has no jurisdiction whatsoever over Ntaganda’s acts, at least insofar as they are legally characterised as war crimes.

In the end, the AC’s decision in Ntaganda is little more than the latest iteration of the Court’s willingness to rely on teleological reasoning when the Rome Statute does not protect victims as much as the judges think it should. No one is in favour of raping and sexually enslaving child soldiers. But the solution isn’t to detach the law of war crimes from its moorings in IHL by holding — if only implicitly — that an act can be a war crime even if it does not violate IHL. To do so is not only legally indefensible, it risks delegitimising both the Court and the law of war crimes itself.

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.

Thoughts on Scott Turow’s ICC Novel, TESTIMONY

by Kevin Jon Heller

I have just finished reading the novel, in which a burned-out former US Attorney joins the ICC to investigate the disappearance, and presumed murder, of 400 Roma in Bosnia. I have always been a huge Scott Turow fan; I’ve read every book he’s ever written, most more than once, and the best one — the classic PRESUMED INNOCENT — five or six times. And there are many good things in TESTIMONY, such as the investigative scenes in Bosnia. In general, the various twists in turns in the story are vintage Turow, with fingers being pointed in all directions and the ending coming as a suitably-foreshadowed surprise.

It is also worth noting that Turow’s decision to set the book at the ICC instead of the ICTY is actually quite clever. We are not in CROSSING LINES territory here. Bosnia is a member of the Court and the Roma massacre took place in 2004, so the ICC clearly has jurisdiction. More importantly, Turow is on firm ground when he explains that the ICTY considered the case but ultimately decided it did not have jurisdiction over it. As ICL nerds know, the ICTY Statute requires crimes against humanity to be connected to armed conflict — the nexus requirement first adopted by the IMT. The Roma massacre lacks the requisite nexus, because there was no armed conflict in Bosnia in 2004.

Unfortunately, that is the legal high point of the book. The rest is replete with errors about the ICC and international criminal law in general. Some of those errors are fundamental, while others are minor but frustrating for how easily they could have been avoided.

The initial error is a doozy: Turow has the Pre-Trial Chamber (PTC) authorise the investigation into the Roma massacre, despite the fact that Bosnia self-referred the situation to the ICC. The book even contains a mock decision pursuant to Art. 15, the proprio motu provision! That is, of course, completely wrong: because Bosnia self-referred, the PTC did not have to authorise the investigation. The OTP was free to investigate the massacre on its own. And that error, in turn, undermines the entire setup of the book, which opens with a scene in which the sole survivor of the Roma massacre testifies before the PTC. The hearing is not only “unprecedented,” as Turow says — it’s pointless, because the OTP could have simply interviewed the witness itself.

Many of the other errors concern the functioning of the ICC. Here they are, in order they appear in the book. Sorry for the lack of page numbers — I was reading on my iPad with the text resized:

[1] It is not at all surprising to find a US prosecutor at the ICC, despite what Turow says. There have always been Americans working at the Court, including some very senior prosecutors like Christine Chung. (As an aside, Turow never bothers to explain why the ICC was willing to hire Bill Ten Boom to investigate the Roma massacre. All he says is that the US wanted an American prosecutor on the case, because the US Army might have been involved — a fact that would obviously have worked against hiring an American.)

[2] An ICC judge would never ask a prosecutor for permission to question a witness. Questioning by the judges is routine and expected.

[3] Dick Cheney did not support unsigning the Rome Statute because he was afraid of being prosecuted for waterboarding. The unsigning took place in May 2002 — before the US had waterboarded anyone. 

[4] The Cambodia and Sierra Leone tribunals are not located in the Hague.

[5] It’s the Jurisdiction, Complementarity, and Cooperation Division, not the “Complementarity Section.”

[6] The principle of complementarity doesn’t require the Court to wait 30 days for a state to act before pursuing an investigation.

[7] The ICC’s judges select the President of the Court, not the Court’s member states.

[8] Not all NATO states have joined the ICC. (Turkey has not.)

[9] The ICC could not sue the US at the ICJ to force it to disclose records. The ICC is not a state and the US does not accept the ICJ’s compulsory jurisdiction.

[10] There is no legal reason why the ICC could not use documents the US produced in (ostensible) violation of the American Service-Members Protection Act (ASPA).

[11] Neither the President of the Court nor the Registrar has any say in how the OTP allocates funds to investigations. (Turow consistently has both involved in the OTP’s decision to exhume the cave in which the Roma massacre supposedly took place.) That’s a serious mistake.

[12] Nothing in the ASPA makes it illegal for a member of the Court to investigate in the US. (Another claim Turow makes again and again.)

[13] The forcible transfer and massacre of the Roma are not war crimes, because there is no armed conflict. If they were committed during an armed conflict, the ICTY would have — and should have — prosecuted those acts.

I’m surprised that the New York Times described TESTIMONY as “well-researched,” because unfortunately it’s not. Or perhaps it is more accurate to say that Turow did his research but didn’t learn from it. According to the Author’s Note, Turow spoke to multiple officials at the ICC — including Judge Tarfusser, Fatou Bensouda, and the Registrar, Herman von Hebel — as well as to ICC experts like my friend Alex Whiting. I’m pretty sure all of those individuals know that the PTC doesn’t have to approve an investigation pursuant to a state referral.

Finally, a note about verisimilitude. It’s easy to dismiss errors like these as irrelevant in a work of fiction. As someone who spent a few years writing television in Hollywood, I have a degree of sympathy for that position. I think it’s fine to fudge the truth when it’s dramaturgically necessary to do so. But there is no excuse for fundamental mistakes like the PTC authorisation — especially when those mistakes can be so easily solved. All Turow had to do was delete the sentence that says Bosnia referred the situation to the ICC. Moreover, there is no point in making simple mistakes that are in no way necessary for the story; that’s just sloppy writing.

Let’s face it: many Americans will learn about the Court for the first time from this book. And they will come away with some basic misunderstandings about how the Court operates.

States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.

Symposium on Israeli Settlements

by Kevin Jon Heller

AJIL Unbound has just posted the contributions to a symposium entitled “Revisiting Israel’s Settlements.” The contributors are all superb: Eyal Benvenisti, Pnina Sharvit Baruch, David Kretzmer, Adam Roberts, Omar M. Dajani, and Yaël Ronen. The true highlight, though, is the essay that accompanies the symposium and will be published in the next issue of the American Journal of International Law: Theodor Meron’s “The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War,” which can be downloaded for free. Meron’s essay revisits the famous memo he wrote in 1967 as the Legal Adviser of the Israel Ministry of Foreign Affairs, in which he made clear, inter alia, that Israel was occupying the West Bank and that building settlements there would violate the Fourth Geneva Convention. Once again Meron painstakingly vivisects the frivolous legal arguments that Israel and its apologists have offered to excuse the occupation and the settlements. But it’s his conclusion that is particularly important:

But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a twostate solution, and thus of reconciliation between the Israelis and the Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other peoples can no longer be accepted in our time.

It’s a shame that Israel didn’t listen to Meron in 1967. Israel might be geographically smaller if it had, but it would also be far more safe and secure. Instead, the settlements metastasise, Israel’s democracy deteriorates, and Palestinians continue to suffer.

Charlie Dunlap’s Defence of Israel’s Attacks on Hezbollah in Syria

by Kevin Jon Heller

Last week, Asaf Lubin offered a compelling post at Just Security wondering why Israel’s repeated attacks on Hezbollah arms shipments in Syria have not received the same kind of jus ad bellum scrutiny as the US’s recent attack on a Syrian airfield. Today, Charles Dunlap provides his answer on the same blog: the Israeli attacks are clearly legal, so why would anyone scrutinise them? Here are the relevant paragraphs:

[I]t appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas.  Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.

It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach.  Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply.  Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.

In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.”  A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.

Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.  We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike.

I don’t find Charlie’s argument convincing. The first problem concerns his claim that the lack of attention to Israel’s attacks “may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.” He cites only two states in defence of the idea that the “international community” accepts this type of anticipatory self-defence: the US and the UK. Needless to say, two Global North states known for their aggressive interpretation of the jus ad bellum do not an “international community” make. Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states. 120>2.

To be fair, Charlie seemingly tries to address this problem by implying that the failure of states (other than Russia and Syria) to specifically condemn the Israeli attacks indicates that they accept the US and UK understanding of imminence. But that clearly isn’t the case. As he acknowledges, Israel itself has not claimed that the attacks are legitimate anticipatory self-defence. Nor has any other state on Israel’s behalf — the US and UK included. The “silence” of the international community can thus hardly be interpreted as acquiescence — particularly in light of NAM’s repeated denunciation of anticipatory self-defence. States are not required to respond to scholarly interpretations of the use of force. When Israel claims its actions are legal because they represent anticipatory self-defence and NAM remains silent, we’ll talk.

It’s also worth noting that Charlie’s account of Israel’s attacks in Syria does not even bring them within the ambit of anticipatory self-defence — or at least not easily. According to him, “the Israeli strike sought to destroy weapons in transit before Hezbollah [could] burrow them into densely-populated areas.” Charlie finds such “burrowing” problematic — justifiably! — because it makes it more difficult for Israel to destroy the weapons caches without causing disproportionate civilian harm. But that is a jus in bello problem, not a jus ad bellum one. The fact that Hezbollah weapons are in a difficult to attack location does not mean that those weapons will be immediately used against Israel. And that is true even in light of Hezbollah’s “history of hostile actions,” which hardly indicates that Hezbollah attacks Israel whenever it has the material means to do so. The mere presence of the weapons in a location near to Israel thus seems to represent precisely the kind of “remote threat[] or threat[] that [has] not yet materialized” that Jeremy Wright, the UK Attorney General whom Charlie cites in defence of his position, says does not give rise to the right of self-defence.

I will say, though, that Charlie’s explanation of the Israeli attacks raises an interesting issue concerning the relationship between the  jus in bello and the jus ad bellum. We are accustomed to the idea that the two legal regimes are independent, and it is beyond doubt that failing to comply with the jus ad bellum does not affect the equal application of the jus in bello. But the converse is not true, as the ICJ specifically affirmed in the Nuclear Weapons case (para. 42):

[A] use of force that is proportionate under the law of self- defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

The jus ad bellum requirement that self-defence comply with IHL does, in fact, suggest that the imminence of an attack should be assessed in light of the victim state’s ability to defend itself in a way that complies with IHL. So I don’t think we can reject the “last clear opportunity to act” understanding of imminence out of hand. On the contrary, if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment, when IHL compliance is still possible.

Even that “relaxed” idea of imminence, however, presupposes that the defended-against attack is more than merely hypothetical. So it’s difficult to see how Israel’s strikes on Hezbollah’s arms shipments could qualify as legitimate acts of self-defence. On the contrary: they are precisely the kind of anticipatory self-defence that international law prohibits.

My UN Presentation on the Aggression Amendments

by Kevin Jon Heller

I had the great honour last week of giving a presentation to ICC member-states about Art. 15bis and Art. 15ter of the aggression amendments — the conditions for the exercise of jurisdiction. The presentation was sponsored by the Assembly of States Parties (ASP) and organised by Austria, part of a series of presentations designed to prepare delegations to participate in the December meeting of the ASP, where the amendments are likely to be adopted (again).

I had a great time at the UN — the first time I had ever set foot in the building! The presentation itself went very well, but it was the subsequent discussion that was the standout. I found the delegations impressively knowledgeable about the aggression amendments, although it’s clear that they remain deeply divided over a number of critical issues concerning their interpretation. My presentation focused on what is perhaps the most controversial issue of all: which acts of aggression will be within the ICC’s jurisdiction once the crime of aggression is activated. Many delegations believe that member-states have to formally opt-out of the aggression amendments to be completely insulated from the Court’s jurisdiction, while others insist that states need only decline to accept the amendments. I did not take a position on that issue in my presentation — although I did during the discussion afterward. Instead, I simply laid out the stakes in the debate as clearly as possible, following up on two blog posts (here and here) I wrote on the issue a few years ago.

I am posting all of my UN materials here, in case readers are interested. They include the text of my presentation, the accompanying Powerpoint slides, and two tables that lay out the jurisdictional consequences of the so-called “negative” and “positive” understandings of Art. 121(5) of the Rome Statute, the key provision in the dispute.

Thoughts most welcome!

Humanitarian Intervention

by Kevin Jon Heller

Wilbur Ross, the Secretary of Commerce:

Speaking at the Milken Institute Global Conference on Monday, Commerce Secretary Wilbur Ross recalled the scene at Mar-a-Lago on April 6, when the summit with Chinese President Xi Jinping was interrupted by the strike on Syria.

“Just as dessert was being served, the president explained to Mr. Xi he had something he wanted to tell him, which was the launching of 59 missiles into Syria,” Ross said. “It was in lieu of after-dinner entertainment.”

As the crowd laughed, Ross added: “The thing was, it didn’t cost the president anything to have that entertainment.”

Can’t wait for Trump to nuke North Korea. What a great show that will be!