Author Archive for
Kevin Jon Heller

How Not to Lie Convincingly About the ICC

by Kevin Jon Heller

Did you hear the one about Judge de Gurmendi, the President of the ICC, taking bribes for from 2004 on to ensure Omar al-Bashir’s indictment?

The president of the International Criminal Court (ICC) is facing calls to resign after it emerged that she may have received financial rewards said to be in millions of dollars to ensure the indictment of Sudanese President Omar al Bashir.

Information reaching The London Evening Post here say that between 2004 and 2015, Argentinian-born ICC President Judge Silvia Alejandra Fernández de Gurmendi allegedly received into her private bank accounts at Banco Popular in the Virgin Islands, the First Caribbean Bank in the Bahamas and the Congregation B’nai Israel unexplained funds mounting to over US$17million that was allegedly used to bribe witnesses that enabled the ICC to indict the Sudanese leader.

The funds are alleged to have been channelled through Judge de Gurmendi’s accounts by Barting Holding Ltd, Atlantic Corporation, Genesis International Holdings and Napex International, all of which are offshore financial companies, who allegedly made wire transfers ranging from US$150,000-US$250,000 to the judge’s bank accounts. It is alleged that these funds were made available to Judge de Gurmendi during the time that President Bashir was under investigation and the ICC was looking for evidence to indict him.

It has been further alleged that funds channelled through Judge de Gurmendi’s accounts were allegedly distributed by her to groups in Darfur including the Sudan Liberation Movement, formerly the Darfur Liberation Front founded by Abdul Wahid al Nur and others in 2002. Appointed ICC President in March last year, de Gurmendi is alleged to have used the funds to ‘recruit, coach and fake evidence and witnesses to testify against President Bashir’.

You have to admire the skill of the bribers. Judge de Gurmendi didn’t become a judge at the ICC until 2010 — long after the first arrest warrant for al-Bashir was issued.

NOTE: Judge de Gurmendi was the head of the Jurisdiction, Complementarity, and Cooperation Division in the OTP from 2003-2006. But nearly four years passed from the end of her tenure to the issuance of the first arrest warrant for Bashir. So my sarcasm above stands.

Fifth Annual Junior Faculty Forum for International Law: New York City, June 27-29, 2016

by Kevin Jon Heller

Today through Wednesday, June 27-29, 2016, the Annual Junior Faculty Forum for International Law will host its fifth edition, at the New York University School of Law. The Forum is convened by Dino Kritsiotis (Univ. of Nottingham), Anne Orford (Univ. of Melbourne), and JHH Weiler (EUI/NYU), who will be joined this year by Benedict Kingsbury (NYU) and José Alvarez (NYU) as guest convenors. The program is here.

My Response to a Recent Attack on SOAS in The Spectator

by Kevin Jon Heller

Last week, Adrian Hilton — a self-described “conservative academic, theologian, author and educationalist” — published a vicious hit-piece in The Spectator about SOAS. It’s entitled “A School of Anti-Semitism?”, and the name basically says it all. According to Hilton: “[p]retty much all student societies at SOAS have no choice but to conform to the Islamo-Marxist orthodoxy”; “the entire student body defines itself in terms of concentric circles of ethno–religious rhetoric, each competing for dominance”; “You can be thrown out of a meeting for being insufficiently black”; SOAS “allows students to organise themselves into warring ethno-religious factions and then sides with some and not others” — and on and on, ad nauseam.

The article is a dishonest caricature of my university, so SOAS asked The Spectator to publish a response. The magazine agreed to give me 600 words, which I greatly appreciate — but they also made me rewrite the final paragraph, claiming that my first one was unfair to Hilton. (Apparently being unfair to an entire university is fine, but being unfair to Hilton is not.) You can find my response here. And in case you are wondering, here is the final paragraph The Spectator refused to run:

Only Hilton knows why he felt the need to portray SOAS so unfairly. But his flagrant disregard for the truth seems to indicate that he is more afraid of SOAS’s multiculturalism than he is of its supposed anti-Semitism. For those who long for a whiter, more Judaeo-Christian world, the vibrancy of SOAS can be a scary sight indeed.

I hope you’ll read both the original article and my response. Comments most welcome!

Mark Kersten’s New Book on the ICC

by Kevin Jon Heller

I am delighted to announce that OUP has just published Mark Kersten’s new bookJustice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Here is the press’s description:

What happens when the international community simultaneously pursues peace and justice in response to ongoing conflicts? What are the effects of interventions by the International Criminal Court (ICC) on the wars in which the institution intervenes? Is holding perpetrators of mass atrocities accountable a help or hindrance to conflict resolution? This book offers an in-depth examination of the effects of interventions by the ICC on peace, justice and conflict processes. The ‘peace versus justice’ debate, wherein it is argued that the ICC has either positive or negative effects on ‘peace’, has spawned in response to the Court’s propensity to intervene in conflicts as they still rage. This book is a response to, and a critical engagement with, this debate.

Building on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution, and negotiation theory, the book develops a novel analytical framework to study the Court’s effects on peace, justice, and conflict processes. This framework is applied to two cases: Libya and northern Uganda. Drawing on extensive fieldwork, the core of the book examines the empirical effects of the ICC on each case. The book also examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the Court and the ICC’s institutional interests, arguing that the negotiation of these interests determines which side of a conflict the ICC targets and thus its effects on peace, justice, and conflict processes.

While the effects of the ICC’s interventions are ultimately and inevitably mixed, the book makes a unique contribution to the empirical record on ICC interventions and presents a novel and sophisticated means of studying, analyzing, and understanding the effects of the Court’s interventions in Libya, northern Uganda – and beyond.

I’ve been following (and promoting) Mark’s work for a long time — since he was a PhD student at the LSE and had just started the blog Justice in Conflict. The blog has turned into a major player in the world of international criminal law, and I have no doubt that Mark’s book will have a significant impact on the field, as well. I’ve had the pleasure of reading it, and it’s excellent.

Buy Kersten! You’ll learn something and help better society, because Mark says that “OUP has agreed to make up to 200 copies of the book available, with all royalties I earn from sales of the book being used to pay for those copies to be shipped to libraries and universities across Africa, especially to those in ICC-affected countries.”

Memorials for My Friend and Colleague, John Jones QC

by Kevin Jon Heller

On behalf of Doughty Street Chambers, I want to publicise two Memorials — one in the Hague and one in London — that will be held in the next few weeks for John Jones QC, beloved friend and colleague, who tragically passed away in late April. Here is the information:

In order to celebrate the life and many personal and professional achievements of our much missed friend and colleague John Jones QC, two memorial events are organised in The Hague and London.

A celebration of John’s life will be held at The Hague Institute for Global Justice on Wednesday 29th June at 7.00pm followed by a reception (a map is available by clicking here).

There will also be a Memorial in London at Middle Temple Hall (click here for directions) on Wednesday 6th July starting at 5.00pm followed by a reception in Middle Temple gardens. The Hall will be accessible from 4.30pm.

For more details and RSVP, click here.

I hope everyone who knew and loved John will be able to attend one of the Memorials. I will be at the one in London in early July.

EU to Help al-Bashir Imprison Refugees

by Kevin Jon Heller

Just when I thought I was beyond being genuinely horrified, Roving Bandit called my attention to a story in Der Spiegel that almost defies words:

The ambassadors of the 28 European Union member states had agreed to secrecy. “Under no circumstances” should the public learn what was said at the talks that took place on March 23rd, the European Commission warned during the meeting of the Permanent Representatives Committee. A staff member of EU High Representative for Foreign Affairs Federica Mogherini even warned that Europe’s reputation could be at stake.

Under the heading “TOP 37: Country fiches,” the leading diplomats that day discussed a plan that the EU member states had agreed to: They would work together with dictatorships around the Horn of Africa in order to stop the refugee flows to Europe — under Germany’s leadership.

When it comes to taking action to counter the root causes of flight in the region, German Chancellor Angela Merkel has said, “I strongly believe that we must improve peoples’ living conditions.” The EU’s new action plan for the Horn of Africa provides the first concrete outlines: For three years, €40 million ($45 million) is to be paid out to eight African countries from the Emergency Trust Fund, including Sudan.

[snip]

The International Criminal Court in The Hague has issued an arrest warrant against Sudanese President Omar al-Bashir on charges relating to his alleged role in genocide and crimes against humanity in the Darfur conflict. Amnesty International also claims that the Sudanese secret service has tortured members of the opposition. And the United States accuses the country of providing financial support to terrorists.

Nevertheless, documents relating to the project indicate that Europe want to send cameras, scanners and servers for registering refugees to the Sudanese regime in addition to training their border police and assisting with the construction of two camps with detention rooms for migrants. The German Ministry for Economic Cooperation and Development has confirmed that action plan is binding, although no concrete decisions have yet been made regarding its implementation.

I think this is what policy wonks call a “bad idea.” Although, to be fair, al-Bashir’s government does know a thing or two about building detention camps:

In the IDP camps, where most of the target groups’ members fled, AL BASHIR has organized the destitution, insecurity and harassment of the survivors. The Ministry for Humanitarian Affairs provides no meaningful Government aid to those displaced, and consistently obstructs or blocks humanitarian assistance from the international community. The Ministry for Humanitarian Affairs blocks the publication of nutrition surveys, delays the delivery of aid, expels relief staff denouncing such acts, denies visas and travel permits, and imposes unnecessary bureaucratic requirements on aid workers. This has the effect of reducing nutrition and access to medical services for protracted periods of time.

Militia/Janjaweed, which AL BASHIR has recruited, armed and purposefully refused to disarm, are stationed in the vicinity of the camps and, with other GoS agents, they subject IDPs to abuses, including killings, rapes and other sexual violence. While the authorities argue that there are armed rebels in the camps, the evidence shows that those attacked are unarmed civilians.

The overall effect of physical attack, forced displacement, destruction of means of livelihood, and denial of humanitarian assistance was that mortality rates among civilians, including principally members of the target groups, remained at critical levels. Between April and June 2004, as deaths directly caused by violence decreased, mortality rates among displaced populations in Darfur remained elevated because of deficient humanitarian assistance. Overall, at least 100,000 civilians – mostly members of the targeted groups – have already endured “slow death” since March 2003.

These paragraphs are from the OTP’s second request for an arrest warrant for al-Bashir, which accused him — inter alia — of “genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.” The Pre-Trial Chamber issued the warrant.

Little wonder the EU ambassadors wanted to make sure the public never found out about its horrific plan to help al-Bashir build detention camps for refugees. (Query: does the EU have a reputation regarding treatment of refugees left to protect?) Alas, Der Spiegel refused to play along.

But don’t worry, EU ambassadors. There is a silver lining: refugees are not a protected group under the Genocide Convention, so you can’t be accused of complicity in genocide when al-Bashir decides the best way to “solve the refugee problem” is to slowly kill them in the camps you help build.

Two Excellent New ICL Treatises: O’Keefe and Guilfoyle

by Kevin Jon Heller

Nothing quite beats a good treatise. Until recently, however, students and scholars of international criminal law had few worthy choices — the best for students being Cryer et al’s An Introduction to International Criminal Law and Procedure and the best for scholars being Werle’s Principles of International Criminal Law.

Those books now have serious competition. Over the past few months, OUP has published two excellent ICL treatises written by leading scholars in the field. The first comes courtesy of UCL’s Roger O’Keefe.

9780199689040 (1)O’Keefe’s book will be of primary interest to scholars, because it is very long and extremely dense. But it’s a must-read, both for its comprehensiveness and for its impressive willingness to tackle fundamental theoretical issues in ICL, such as the nature of an international crime. The only downside to the book is its expense — £95. I hope OUP will release a paperback version in the near future.

The second treatise is written by Monash’s Douglas Guilfoyle.

9780198728962

Although ICL scholars will want to have it on their bookshelves, Guilfoyle’s treatise is aimed primarily at students. It is less dense than O’Keefe’s treatise, but it still manages to provide exceptionally clear overviews of all of the primary issues in ICL without sacrificing intellectual rigour. I particularly like the way Guilfoyle uses sidebars to provide examples and “counterpoints” regarding specific issues — they are uniformly helpful. The price of the treatise is also right at £37.

I’m sure excellent ICL treatises remain to be written. But O’Keefe and Guilfoyle’s entries have raised the bar considerably.

Apple Rejects Game Where You Play a Palestinian

by Kevin Jon Heller

palestinegameThe game in question — from which the screenshot is taken — is entitled Liyla and the Shadows of War. Here is how the gaming magazine Hardcore Gamer describes it:

Liyla and the Shadows of War is a short, dark game about exactly what the title implies. You play as a father running home through a war zone attempting to collect his family and get them to safety as the bombs fall and the drone strikes mow down anything that moves.

[snip]

At the start I navigated a few platforming sections, figured out how to avoid gunfire, made a couple of story choices, and even did a simple auto-run section where I had to control the jumping of two characters simultaneously. Of the 30-ish minutes of using the app, this was about 28 or so. The final two  minutes (and it might have been less, I wasn’t running a timer) were spent reading.

A game, right? Not if you’re Apple, apparently:

CiwVR6mUUAA4j4pThe gaming community is mocking Apple’s decision, and rightfully so. As Hardcore Gamer points out, “Liyla and the Shadow of War is a game. Having a serious message about a real-world conflict doesn’t make it any less so, and it’s insulting not just to the developers but to gaming in general to say otherwise.” Indeed, there is no way Apple actually believes that Liyla and the Shadow of War isn’t a game; it simply doesn’t want to host a game developed by a Palestinian that encourages thinking critically about Israel’s violence toward Palestinians. But rejecting the game on political grounds would itself be seen as political — correctly — so Apple comes up with a ridiculous pretext for rejecting it and hopes nobody notices.

I know what you’re thinking: doesn’t Apple has the right to avoid “political” games? Isn’t it smart business to stay out of the Israel/Palestine conflict?

Fair question. And in response I give you this:

screen568x568 (1)

Meet Israeli Heroes, an Angry Birds rip-off in which — according to Boing Boing — “you hurl cartoon missiles at vaguely Arabic-looking adversaries.” Currently available for free on iTunes.

So much for Apple’s political neutrality.

Liyla and the Shadow of War is still available for Android on Google Play. I haven’t tried it yet, but it has a 4.9 average from 333 reviews, so it’s obviously good. Check it out. Maybe you’ll have fun playing and learn something about life in Palestine in the process.

Which is precisely what Apple doesn’t want you to do.

A Quick Bleg

by Kevin Jon Heller

Does anyone have an idea of what would be a fair hourly rate for someone to cite-check — both for substance and for accuracy of citation — a leading international law treatise published by a leading university press? Rates in pounds, dollars, or euros would be most appreciated!

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

Rest in Peace, John Jones QC

by Kevin Jon Heller

It is with great sadness — and ongoing shock — that I report the unexpected passing of John Jones QC, one of the great international lawyers. Accomplishments are not important at a time like this, but here is a snippet from his Doughty Street International profile to give readers  a sense of what a spectacular barrister John was:

John has acted as Counsel in 5 cases before the International Criminal Tribunal for the former Yugoslavia (“ICTY”) – in two cases (Naser Oric and Ante Gotovina/ Mladen Markac), his clients were acquitted of all charges on appeal. Two of his other ICTY cases were not completed due to the death of the acused (Mehmed Alagic and Rasim Delic). In the fifth case, he appeared as Counsel as part of the amicus curiae team (Krajisnik). John was also the first head of the Defence Office of the Special Court for Sierra Leone (SCSL) and legal officer at the International Criminal Tribunal for Rwanda (ICTR), contributing to  the first Judgment on genocide. He was one of only 8 counsel assigned as defence counsel at the Special Tribunal for Lebanon (STL), established to try those allegedly responsible for the killing of former Lebanese Prime Minister Rafik Hariri in an explosion on 14 February 2005.

I had the great honour of considering a John a good friend. I first got to know him during the Gaddafi case, when he and I regularly exchanged emails about Libya’s complementarity challenge. And then he encouraged me to join the Doughty Street team as an academic member. John was, quite simply, a wonderful person — warm, funny, supportive. I never met anyone who didn’t like him, even people who had to face him the courtroom. I know I liked him. Very much.

I will miss John dearly, and my heart goes out to his beloved wife and two remarkable children. We all deserved to have John longer, but we’re lucky to have had him at all.

Requiescat in pace, John.

Call for Interns: International Crimes Division of the High Court of Uganda

by Kevin Jon Heller

The following opportunity may be of interest to OJ readers who are law students:

The Registrar of the International Crimes Division (“ICD”) of the High Court of Uganda has issued a call for interns to assist the court in its first war crimes case against former Lord’s Resistance Army member Thomas Kwoyelo. Opportunities are available in the ICD’s Office of the Prosecutor, Registry and Chambers in Kampala, Uganda. Further information, application and contact details can be found here.

Applications are being accepted until May 2016, so act quickly!