Author Archive for
Kevin Jon Heller

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

Sorry for the endless self-promotion, but I thought readers might be interested in the following episode of Al Jazeera’s Inside Story, which includes a 30-minute panel on siege warfare in Syria that I participated in. It was quite a wide-ranging discussion, focusing less on international law than I expected.

As always, comments welcome! I hope readers don’t think I was too soft on either Assad or the UN…

Discussing Gbagbo on BBC World News

by Kevin Jon Heller

I had the pleasure of going on BBC World News a couple of days ago to discuss the opening of Laurent Gbagbo’s trial at the ICC. The clip they sent me is very low quality; the sound isn’t even synced correctly. But I’m posting it just in case anyone wants to hear what I had to say. It’s about three minutes long.

I have to admit, being in that giant BBC studio was intimidating. I’ve done television before, but it was always remote from a tiny recording room. I hope I acquitted myself okay!

Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.

New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

You Can Prosecute Animal Rights Activists But Not a Right-Wing Militia for “Terrorism”

by Kevin Jon Heller

Earlier today, a right-wing militia seized the headquarters of the Malheur National Wildlife Refuge in Oregon. The group, which is led by Ammon Bundy — the son of Cliven Bundy, who led an armed stand-off with federal agents in 2014 — is demanding that the federal government release Dwight Hammond Jr. and Steven Hammond, two ranchers who are due to report to a California prison on Monday to serve out their sentences for arson. Bundy says the group intends to hold the building “for years” and refuses to rule out using violence if police try to remove them.

There is little question that the militia’s actions qualify as seditious conspiracy. 18 USC 2384 specifically criminalizes “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspir[ing]… to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy is a very serious crime, one that carries a maximum sentence of 20 years imprisonment.

But what about domestic terrorism? Could the members of the militia be prosecuted as domestic terrorists once the seige is over?

Domestic terrorism is defined in 18 USC 2331(5):

the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

At this point, the militia has probably not satisfied 18 USC 2331(5). Although their activities are clearly “intended… to influence the policy of a government by intimidation or coercion,” it is difficult to argue that the militia has engaged in acts “dangerous to human life,” because the Wildlife Refuge’s headquarters was closed and unoccupied when the militia seized it.

The situation would be very different, of course, if the militia followed through on its threat to use force to repel an attempt by the police to retake the headquarters. Doing so would clearly qualify as domestic terrorism under 18 USC 2331. But here is the problem in terms of actual prosecution: as Susan Hennessy pointed out in an excellent post at Lawfare after the mass murders in Colorado and California, “[d]omestic terrorism does not exist as a substantive offense under federal law.” It is simply an element of other substantive federal offences, such as bribery affecting port security, 18 USC 226 (Hennessy’s example). And none of those offences would seem to cover the militia’s seizure of the Wildlife Refuge headquarters.

The bottom line, then, is that although we could call the members of the militia “terrorists” if they ever engage in acts dangerous to human life, they could not be prosecuted as terrorists. That’s perverse — especially when we contrast the absence of a substantive federal terrorism offence covering the militia’s actions with the existence of a substantive federal terrorism offence designed specifically to prosecute non-violent animal-rights activists: 18 USC 43, the Animal Enterprise Terrorism Act (AETA). The AETA, which was adopted by Congress at the behest of the pharmaceutical, fur, and farming industries, is an absurdly overbroad statute that deems any actions that intentionally damage the property of an animal enterprise to be “terrorism”:

(a) Offense.—Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose—

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

The only “violence” the AETA requires is the violence of ripping up documents or opening up animal cages. Indeed, the AETA has been used to prosecute as terrorists four people who “chalked the sidewalk, chanted and leafleted outside the homes of biomedical scientists who had conducted animal testing” and two young men who “released about 2,000 mink from cages and painted the slogan ‘liberation is love’ in red paint over a barn.” The charges in the first case were thrown out for lack of factual specificity, but both of the defendants in the second case have pleaded guilty and are facing 3-5 years in prison.

It defies logic that there is a substantive federal terrorism offence covering non-violent activists who open mink cages but not one covering a right-wing militia that forcibly seizes a federal building, demands the release of prisoners, and threatens to kill anyone who tries to intervene. But there you have it.

The Washington Post Needs to Correct Its Syria Article

by Kevin Jon Heller

Karen De Young and Missy Ryan have a long article today in the Washington Post about internal USG debates over the rules of engagement in Syria. It’s a very interesting and generally excellent article, but it contain one major error:

International law allows for civilian casualties, even intentional ones, providing an action is within the bounds of distinction and proportionality, a somewhat subjective judgment that the military importance of the target is worth it.

No, international law does not allow intentional civilian casualties. Intentionally attacking civilians violates IHL’s principle of distinction and is a quintessential war crime. The sentence should read “international law allows for civilian casualties, even ones known to be certain, providing an action is within the bounds of proportionality…”

I have tweeted the authors of the article. I will update this post if they issue a correction.

UN Recognises Jewish Holiday for the First Time

by Kevin Jon Heller

From CNN:

For the first time in its 70-year history, the United Nations has officially recognized a Jewish holiday.

U.N. employees who observe the Jewish faith will have the day off and no official meetings will take place on this date from now on, according to the Israeli mission to the organization.

Yom Kippur, or the Day of Atonement, considered the most important Jewish religious holiday, will join two of the world’s other monotheistic religions in having one of its high holidays observed by the world body.

Christmas Day, Good Friday, Eid al-Fitr and Eid al-Adha have all been recognized by the United Nations as official religious holidays.

This is an excellent decision on the UN’s part — its recognition of multiple Christian and Muslim holidays but not even one Jewish holiday has never made sense. And in a perfect world, the decision would be greeted with approval by individuals of all political stripes.

But this is Israel, of course, where there is no such thing as apolitical. On the “pro” Israel side, there are factually-challenged editorials like this one, in which the authors argue that recognising a Jewish holiday is somehow necessary to compensate for the UN’s supposed anti-Israel bias:

But over time, Israel has been a target for exceptional mistreatment at the United Nations. A pluralistic democracy facing extremists sworn to its destruction, Israel is routinely condemned by the body’s Human Rights Council, more than any other member state. Israel’s assailants at the United Nations often assert that they respect Jews and Judaism — and reserve their shrill disdain only for Israeli policies and Zionism. But the demonization of Israel calls their motives into question.

And on the “anti” Israel side, there are tweets like this one, bizarrely claiming that the UN is somehow honouring Israel by recognising Yom Kippur and that doing so will somehow increase anti-Semitism:

I expect better, particularly from the “antis.” Those of us who support progressive change in Israel have argued for years that there is nothing remotely anti-Semitic about criticising Israel’s policies and actions. And there is increasing evidence that eliding the difference between the two in order to insulate Israel from criticism has lost much of its rhetorical power. Tweets like the one above risk undermining all the good work we have done.

It’s really pretty simple: the UN is not honouring Israel by recognising Yom Kippur. It is recognising Judaism, one of the world’s major religions, as it has recognised others. And it’s about time it did.

Why All the Hate Toward Breaking the Silence?

by Kevin Jon Heller

Although anything I post about Israel invariably elicits angry comments, nothing makes Israel’s supposed “defenders” more angry than my posts — see here and here — about Breaking the Silence, the Israeli organisation that collects testimonies by IDF soldiers about their experiences in combat. I’m obviously not the only one who has noticed the anger toward the organisation; Haggai Mattar recently published a superb article at +972 entitled simply, “Why Do So Many Israeli’s Hate Breaking the Silence?” Here are a couple of key paragraphs:

The first claim, which in my mind is the most important and critical accusation to refute, is that Breaking the Silence is not credible. The organization’s critics come up with all sorts of reasons why the organization isn’t credible, but there is one rebuttal that is awfully difficult to refute: In the 11 years that Breaking the Silence has collected and published testimonies, there has not been one instance in which a serious error — not to mention a fabrication — has been found in their published testimonies.

This is no insignificant point — it needs to be the heart of the debate. An organization that publishes hundreds of testimonies, which works with more than 1,000 soldiers, which has dealt with very complicated subject matter for 11 years — and not a single fabricated published testimony has ever been found. No court of law in any land can boast of such a record. And that is despite a number of attempts to fool the organization by giving them false testimonies. Their researchers and fact-checkers seem to have a perfect record of catching fabrications before publication.

That astounding success is the result of the massive investment Breaking the Silence makes in every single testimony. As the organization’s director of research has written here in the past, every testimony given by a soldier or former soldier is fact-checked, and the background of the incident or testimony is verified along with the identity of the testifier him or herself (and that they are not an aspiring politician looking to make a name for himself). The entire testimony is then corroborated with any available information — both from other soldiers’ testimonies and open source information. Some of the most hair-raising testimonies collected by Breaking the Silence were never published because the organization could not independently corroborate them. Just imagine if journalists who published attack pieces on the organization applied their strict verification standards to their own work and the malicious things that are said about it.

The article goes on to explain why Breaking the Silence does not give its testimonies to the IDF (they used to — and were investigated by the IDF for their trouble); why the testimonies are anonymous (similar reasons); why the organisation’s foreign funding is a non-issue (duh); and why it engages in events overseas (double duh).

The article ultimately concludes by answering the question asked by its title: because Breaking the Silence involves Israeli soldiers laying bare the ugly reality of how the IDF actually conducts its biennial destruction of Gaza — a necessary counterpoint to the endless Israeli propaganda about how the IDF is the “most moral army” in the world. The IDF regularly violates IHL and commits war crimes, and no number of self-interested secret briefings by the IDF about its targeting procedures can change that basic fact.

The Arbitrariness of ICTY Jurisprudence (Specific-Direction Style)

by Kevin Jon Heller

Last week, the ICTY Appeals Chamber reversed the acquittals of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police under Milosevic, and ordered them retried. One of the two grounds for reversal was the Trial Chamber’s adoption of the specific-direction requirement; in the majority’s view (the vote was 3-2), specific direction is not an element of the actus reus of aiding and abetting.

As Marko Milanovic notes today at EJIL: Talk!, the outcome of the Stanisic & Simatovic appeal was completely predictable, because all three of the judges in the majority — Pocar, Liu, and Ramaroson — were also in the majority in Sainovic, in which the Appeals Chamber first rejected its earlier decision in Perisic to adopt the specific-direction requirement. Indeed, Liu and Ramaroson had each rejected the requirement in Perisic, as well.

But here is what’s interesting: Stanisic & Simatovic was completely predictable only because Judge Meron replaced two judges that were originally assigned to the appeal. The original five judges were Meron himself, Agius, Pocar, Liu, and Khan. Two of those judges were in the majority in Perisic (Meron and Agius) and two, as noted, were in the majority in Sainovic (Pocar and Liu). Assuming that none of those judges changed his mind about specific direction, the deciding vote would thus have been Khan, who had not yet expressed an opinion on the doctrine.

The calculus changed, however, when Meron made the first change — replacing himself with Judge Afande. That change meant that there was now only one judge in favour of specific direction (Agius), two judges against it (Pocar and Liu) and two judges who had not yet taken a position (Khan and Afande). That was still an unpredictable panel, even though it now leaned toward rejecting specific direction.

And then came Meron’s second change: replacing Judge Khan with Judge Ramaroson. That change meant the writing was on the wall, because the lineup now included one judge in favour of specific direction (Agius), three judges against it (Pocar, Liu, and Ramaroson), and one judge who had not taken a position (Afande). So it no longer mattered what Judge Afande thought.

There is no reason to believe anything untoward explains Meron’s changes; after all, he supported specific direction in Perisic. But it’s regrettable that it was so easy to predict the outcome of the Stanisic & Simatovic appeal simply by counting judges — as Marko notes, “this unfortunately exposes some of the arbitrariness inherent in judicial decision-making in borderline cases.” The substance of ICTY jurisprudence should not be decided by which judges the President decides to appoint to an Appellate Bench. (In this regard, the structure of the ICC’s judiciary is vastly superior. At the ICC, all five judges in the Appeals Division hear every appeal.)

My position on the specific-direction requirement is well known, so I won’t rehash it here. But I will end this post by noting that the only unknown quantity in Stanisic & Simatovic, Judge Afande, concluded in his dissent that specific direction is an inherent aspect of aiding and abetting — precisely what I’ve been arguing. Win the battle, lose the war…

Moreno-Ocampo Needs a Remedial Criminal Law Course

by Kevin Jon Heller

Here is Moreno-Ocampo’s latest doozy, concerning the possibility of Israelis being prosecuted for war crimes related to Israel’s illegal settlements in the West Bank:

Where the Israeli High Court of Justice has approved specific settlements as legal, this could provide a complete defense to any allegations that they are war crimes, former International Criminal Court chief prosecutor Luis Moreno-Ocampo told the Jerusalem Post on Thursday.

Moreno-Ocampo is in Jerusalem lecturing at the The Fried-Gal Transitional Justice Initiative at the Hebrew University Law School.

Although Moreno-Ocampo has stepped down from his post, he was the boss of the current ICC chief prosecutor who will decide whether or not the settlements qualify as a war crime, is considered highly influential internationally and his statement could be a major coup in the debate over the issue.

Moreno-Ocampo did not by any means say that the settlements were legal under international law.

But he did say that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.

“At least they could show no intention” to commit a crime said the former chief ICC prosecutor.

Few ICL scholars are more sympathetic to mistake defences than I am (see this article), but Moreno-Ocampo’s statements simply make no sense. Most obviously, Art. 32(2) of the Rome Statute specifically recognises the principle ignorantia legis neminem excusat — ignorance of the law excuses no one:

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.

Art. 32(2) applies regardless of whether a defendant was simply unaware that his actions were illegal (ignorance) or affirmatively believed that they were legal (mistaken belief). So if an Israeli was prosecuted for committing a settlement-related war crime — transfer of civilians into occupied territory, forcible transfer, pillaging, etc. — it would not matter that he either did not know international law criminalised his actions or believed that his actions were legal because the Israeli Supreme Court had approved the legality of settlements. The only question would be whether he committed the actus reus of the war crime in question with the necessary mens rea.

To be sure, some common-law systems provide an exception to the ignorantia legis principle where the defendant has reasonably relied on an official interpretation of the law. Moreno-Ocampo’s emphasis on the reputation of the Israeli Supreme Court suggests he might be thinking about that exception. But there are two significant problems here. First, no such exception exists in the Rome Statute, as the text of Art. 32(2) makes clear. Second, even if there was one, the ICC would be very unlikely to conclude that an Israeli defendant could reasonably rely on a statement by an Israeli court — even a supposedly “highly respected” one (which is questionable) — that settlements are legal. That would obviously be the case if the Israeli Supreme Court affirmed that the settlements were legal under Israeli law; no international tribunal has ever allowed such a “domestic legality” defence. And I seriously doubt that the ICC would find it any more reasonable for an Israeli defendant to rely on an Israeli court’s interpretation of international law, given the widespread international rejection of official Israeli positions on a variety of international-law issues.

Finally, we might be generous and assume that Moreno-Ocampo was actually thinking not about Art. 32(2) of the Rome Statute, but about Art. 32(1), which recognises mistakes that negative mens rea:

A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

In this interpretation, Moreno-Ocamp is actually arguing that an Israeli defendant who knew the Israeli Supreme Court had approved the legality of the settlements would not have the mental states required by any of the various settlement-related war crimes. But that is a flawed argument, because none of those war crimes require a mens rea that would be negated by a belief in settlement legality. Consider, for example, the elements of the war crime of direct or indirect transfer, Art. 8(2)(b)(viii) of the Rome Statute:

1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies…

2. The conduct took place in the context of and was associated with an international armed conflict.

3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

In terms of mens rea, Art. 8(2)(b)(viii) requires the prosecution to prove that the defendant (1) intentionally engaged in the acts that qualified as direct or indirect transfer; (2) knew that Israeli civilians were moving into occupied territory; and (3) knew that Israel exercised effective control over the West Bank at the time of the transfer. The defendant’s belief that settlements are legal would not negate either of those mental elements, so Art. 32(1) would not apply.

No matter how we interpret it, then, Moreno-Ocampo’s statement about the Israeli Supreme Court makes no sense as a matter of substantive international criminal law. Israel relies on the “expertise” of this “highly influential” former prosecutor at its own peril…

Reminder: Deadline for the Fifth Annual Junior Faculty Forum

by Kevin Jon Heller

JFF2016_CoverOnlyJust a reminder that the deadline for applications for the Fifth Annual Junior Faculty Forum for International Law, which will be held at NYU from June 27-29, 2016, is fast approaching. Applications are due December 15. Those who are keen to make an application can find the details of the application procedure set out here. As always, I highly recommend that young scholars apply!