Author Archive for
Kevin Jon Heller

The Absence of Practice Supporting the “Unwilling or Unable” Test

by Kevin Jon Heller

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.

China’s Overbroad (Draft) Definition of Terrorism

by Kevin Jon Heller

Today’s a travel day, so I don’t have time to write a full post. But I thought I’d flag a very interesting article in The Diplomat about China’s new draft anti-terrorism bill, which seems to have a strong chance of becoming law. Here’s a snippet:

Obviously owing to the worrisome escalation of terrorist acts since the Tiananmen Square attack in October 2013, Chinese authorities decided to enact a comprehensive anti-terrorism law to address the new situation. Such a law requires, first and foremost, a well-reasoned definition of terrorism. Surprisingly, the draft law did not take up the terrorism definition that had been offered by the anti-terrorism Decision in 2011. According to Article 104 of the draft law, “terrorism” means “any thought, speech, or activity that, by means of violence, sabotage, or threat, aims to generate social panic, influence national policy-making, create ethnic hatred, subvert state power, or split the state.”

Article 104 goes on to flesh out the keyword “terrorist activity” as referred to in the “terrorism” definition. Accordingly, “terrorist activities” include (a) propagating, inciting, or instigating terrorism; or (b) forming, leading or participating in an terrorist organization; or (c) organizing, plotting, or implementing a terrorist action; or (d) supporting, assisting, or facilitating a terrorist organization or individual through the provision of information, funds, material, equipment, technologies or venues; or (e) other terrorist activities.

[snip]

Absent a comprehensive and universal definition of terrorism, individual countries, including China, are left with the authority to interpret the term for themselves. Compared with Western liberal countries, China has greater discretion to combat terrorism in an effective – albeit repressive – manner. However, whenever China resolves to address the scourge of terrorism, it must also face the challenge of how to strike a proper balance between security and liberty.

Before passing the anti-terrorism law, Chinese law-makers need to overhaul the definition of terrorism to guarantee that terrorism is described as a serious crime with an additional quality that calls both for international concern and harsh treatment. In addition, proper procedural safeguards regarding terror lists should be introduced to ensure that the definition of terrorism does not capture an unreasonably wide range of persons, or, if this happens, that the affected persons will not be subject to unreasonable consequences.

The article contains a nice comparison of the draft Chinese law with the elements of most international conventions on terrorism. It’s well worth a read.

What Exactly Is the ICRC’s Position on Detention in NIAC?

by Kevin Jon Heller

I still need to write Part 2 of my response to Ryan Goodman, but it’s worth noting that he and I actually agree about detention in NIAC much more than we disagree. We both agree that IHL itself does not authorize such detention. We both agree that the standard governing detention in NIAC is that it must be non-arbitrary. We both agree that, in practice, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. So we seem to disagree only on one substantive point: where the requirement of non-arbitrariness comes from. Ryan says it comes from IHL itself. I argue that it comes from IHRL.

In my previous post, I took issue with Ryan’s claim that an ICRC Background Paper and Rule 99 of the ICRC’s study of customary law supported his position. I argued that neither clearly supports the idea that IHL requires detention in NIAC to be non-arbitrary, because both the Paper and the Rule rely on both IHL and IHRL for the substantive detention rules they endorse — and do not adequately disentangle the two legal strands. In response, Ryan accused me on Twitter — in a friendly manner — of arguing that he and the ICRC don’t understand the law of war.

Ryan and I obviously do disagree about whether IHL itself requires detention in NIAC to be non-arbitrary or whether its silence on that issue means IHRL’s requirement of non-arbitrariness applies as lex specialis. But I was not trying to claim that the ICRC was wrong, because I did not believe that Ryan was accurately characterizing its position. So I spent more time than than I expected after our exchange combing through the ICRC’s statements on the arbitrariness issue. I won’t bore readers with the twists and turns, but I do want to flag the ICRC’s most recent statement, an Opinion Paper dated November 2014. If the Opinion Paper does indeed reflect the ICRC’s current position on detention in NIAC, it turns out that  the ICRC disagrees with both me and Ryan, as well as with Dapo Akande and Lawrence Cawthorne-Hill at EJIL: Talk!, because it believes that IHL does, in fact, authorize detention in one kind of NIAC — extraterritorial NIAC. Here is what the ICRC says (p. 7):

In a “traditional” NIAC occurring in the territory of a State between government armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and IHL, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. A careful examination of the interplay between national law and the applicable international legal regimes will be necessary. The right to judicial review of detention under human rights law will, of course, continue to apply; there are, however, differing views on whether this obligation may be derogated from.

Identifying the legal framework governing internment becomes particularly complicated in NIACs with an extraterritorial element, i.e. those in which the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups.

The fact that Article 3 common to the Geneva Conventions neither expressly mentions internment, nor elaborates on permissible grounds or process, has become a source of different positions on the legal basis for internment by States in an extraterritorial NIAC. One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.

In short, according to the ICRC, IHL does not authorize detention in “traditional” NIACs, those fought solely on the territory of one state, but does authorize detention in extraterritorial NIACs. Indeed, the Opinion Paper specifically cites Serdar Mohammed as an example of the first view of extraterritorial NIAC — the one that the ICRC rejects. The ICRC’s position thus seems to be closest to Aurel Sari in the comments to my previous post, as well as to Kubo Mačák at EJIL: Talk!. Then again, the ICRC doesn’t completely agree with them, either, because the Opinion Paper quite specifically limits IHL’s inherent power to detain to extraterritorial NIAC — thus seeming to agree with me, Ryan, Dapo, and Lawrence that the authority to detain in at least traditional one-state NIACs comes from domestic law, not from IHL itself.

I confess that I find the ICRC’s traditional/extraterritorial distinction rather confusing. I don’t understand how the conventional and customary IHL of NIAC could contain “an inherent power to intern” in extraterritorial NIAC but not in traditional NIAC; doesn’t it have to be both — or neither? After all, each of the factors the ICRC cites in defense of its position apply equally to traditional NIAC. Internment is indeed a “common occurrence in armed conflict,” but it is common in both traditional and extraterritorial NIACs. Common Article 3 does not prohibit detention in either traditional or extraterritorial NIAC. And Additional Protocol II is capable of applying to some traditional NIACs and of not apply to some extraterritorial NIACs. In fact, it is probably more likely to apply in a traditional NIAC.

To be clear, I’m skeptical the Opinion Paper is correct even concerning extraterritorial NIAC. Nothing in conventional IHL suggests an inherent power to detain in any kind of NIAC: as Ryan, Dapo, and Lawrence have all pointed out, international law often recognizes and regulates a practice without authorizing it. And although there could in principle be an asymmetric customary rule that says IHL authorizes detention in extraterritorial NIAC while domestic authorization is required in a traditional NIAC, there seems to be no evidence that such a rule exists. As Dapo and Lawrence point out in their post, “[e]ven in the context of extraterritorial NIACs, states have looked elsewhere for authorisation [to detain] (see, e.g., Iraq and Security Council Resolution 1546).”

My point, then, is simply that I don’t think the ICRC can have it both ways. Either there is an inherent power in IHL to detain in NIAC or there isn’t.

One thing is clear: the ICRC really needs to clarify its position on detention in NIAC.

Responding to Ryan Goodman About Serdar Mohammed — Part I

by Kevin Jon Heller

At Just Security, my friend Ryan Goodman has posted a long analysis of Serdar Mohammed v. Ministry of Defense, in which the UK High Court held that IHL neither authorizes nor regulates detention in non-international armed conflict (NIAC). That decision will soon be considered by the Court of Appeal.

In his post, which is a must-read, Ryan states that he agrees with the High Court that IHL does not authorize detention in NIAC but disagrees that IHL does not regulate such detention. I share Ryan’s position on the first point, but I disagree with him — and agree with Justice Leggatt in Serdar Mohammed — on the second. In a subsequent post, I will address Ryan’s argument that “whatever is permitted in international armed conflict is permitted in noninternational armed conflict.” I have described that argument in a forthcoming book chapter as “reasoning by analogy”; Ryan rejects that description and says he is engaging in “reasoning by structure.” I will try to show in the next post that the “whatever is permitted” argument is problematic no matter how we describe its underlying reasoning.

In this post, I want to focus Ryan’s argument that, contrary to Justice Leggatt, IHL does in fact regulate the permissible grounds for detention in NIAC. Here is what he says (emphasis mine):

So far we have discussed the permissive boundaries of detention in NIAC but what about limitations on states in these contexts? IHL also imposes a set of prohibitions on the grounds for detention in internal armed conflict. That is, multiple sources conclude that IHL prohibits arbitrary deprivation of liberty in NIAC (see footnote 12 of the AJIL article, for example). Subsequent to that law review article, several important states through the Copenhagen Process—including “specially affected” states which is a significant category for customary international law purposes—explicitly accepted such restrictions on detention in NIAC.  Consider also the ICRC’s statement in a Background Paper on detention for the regional consultations 2012-2013: “In terms of grounds for internment, the ICRC, along with a growing international consensus of experts considers that ‘imperative reasons of security’ is an appropriate standard for internment in NIAC.” And a Report by a group of experts convened by the ICRC and Chatham House “quite easily” reached a consensus that in NIACs “parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat.” (See also the ICRC’s customary international humanitarian law Rule 99: Deprivation of Liberty).

To begin, it’s worth noting that Ryan does not seem to be “reasoning by structure” here — he seems to be arguing that, as a matter of customary international law, IHL prohibits arbitrary detention in NIAC. After all, he specifically mentions custom and “specially affected” states in the context of the Copenhagen Process. Moreover, he refers to the ICTY’s jurisdiction decision in Tadic both here and in his superb law-review article on security detention — and Tadic specifically based its (methodologically dubious) extension of IAC-based rules of IHL to NIAC on customary international law. As it said with regard to those rules (para. 127), “it cannot be denied that customary rules have developed to govern internal strife.”

If Ryan is claiming that IHL prohibits arbitrary detention in NIAC as a matter of customary international law, I have no theoretical objection to his argument. Indeed, as I’ll explain in my next post, my position is that international human rights law (IHRL) governs the regulation of detention in NIAC precisely because there are no contrary customary rules of IHL that can serve as the lex specialis of detention. If there are such customary rules, IHL may well displace IHRL (depending on how we understand the lex specialis principle).

That said, I take issue with Ryan’s claim that (as a matter of custom?) IHL prohibits arbitrary detention in NIAC — a standard that has no basis in the conventional IHL of NIAC and is normally associated with IHRL

Go Read Jens’s New Book!

by Kevin Jon Heller

9780199987405_450I am occasionally accused — correctly, of course — of using the blog as little more than a tool for shameless self-promotion. So it gives me great pleasure to use the blog as a tool of shameless other-promotion and announce the publication of Jens’s important new book, The Assault on International Law, now available from our friends at Oxford University Press. Here is the publisher’s description:

International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations.

Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. Theses abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases – ultimately triggering America’s pernicious withdrawal from international cooperation.

In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these ‘New Realists,’ in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature—a result that is not only legally binding but also in each state’s self-interest.

I have had the pleasure of reading the book, and it’s tremendous. Many international-law scholars are (understandably) resistant to the caricature of international law presented by the Posners and Yoos of the world, but few have the theoretical chops to engage in the kind of imminent critique of “New Realism” that Jens provides. I hope the book gets the audience it deserves.

The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

The Washington Post has a long article today about how Mossad and the CIA collaborated to blow up Hezbollah’s chief of international operations in 2008. Here are the key paragraphs:

On Feb. 12, 2008, Imad Mughniyah, Hezbollah’s international operations chief, walked on a quiet nighttime street in Damascus after dinner at a nearby restaurant. Not far away, a team of CIA spotters in the Syrian capital was tracking his movements.

As Mughniyah approached a parked SUV, a bomb planted in a spare tire on the back of the vehicle exploded, sending a burst of shrapnel across a tight radius. He was killed instantly.

The device was triggered remotely from Tel Aviv by agents with Mossad, the Israeli foreign intelligence service, who were in communication with the operatives on the ground in Damascus. “The way it was set up, the U.S. could object and call it off, but it could not execute,” said a former U.S. intelligence official.

The United States helped build the bomb, the former official said, and tested it repeatedly at a CIA facility in North Carolina to ensure the potential blast area was contained and would not result in collateral damage.

“We probably blew up 25 bombs to make sure we got it right,” the former official said.

The extraordinarily close cooperation between the U.S. and Israeli intelligence services suggested the importance of the target — a man who over the years had been implicated in some of Hezbollah’s most spectacular terrorist attacks, including those against the U.S. Embassy in Beirut and the Israeli Embassy in Argentina.

The United States has never acknowledged participation in the killing of Mughniyah, which Hezbollah blamed on Israel. Until now, there has been little detail about the joint operation by the CIA and Mossad to kill him, how the car bombing was planned or the exact U.S. role. With the exception of the 2011 killing of Osama bin Laden, the mission marked one of the most high-risk covert actions by the United States in recent years.

The article touches on the legality of Mughniyah’s killing, with the US arguing that it was a lawful act of self-defense under Art. 51 of the UN Charter and Mary Ellen O’Connell claiming that it was perfidy. Regular readers will anticipate my skepticism toward the former claim, and there is simply no support in IHL for the latter claim. Perfidy is an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Mossad and the CIA did nothing of the kind.

Mossad and the CIA did, however, violate the International Convention for the Suppression of Terrorist Bombings, which Israel ratified on 10 February 2003 and the US ratified on 26 June 2002. I don’t want to dwell on Mossad in this post; the analysis is the same as the one I provided here with regard to its assassination of Iranian nuclear scientists. Instead, I want to focus on the US’s complicity in Mughniyah’s death.

To begin with, there is no question that the bombing itself qualifies as a prohibited act of terrorism under the Terrorist Bombing Convention. Here is the relevant definition, Art. 2(1):

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

Mughniyah’s killing satisfies this definition. The attack involved an “explosive device” and it was clearly intended to “cause death.” It also took place on a public street, which qualifies as a “place of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”

The CIA was also complicit in that prohibited act of terrorism, pursuant to Art. 2(3):

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

The language of Art. 2(3) easily encompasses the CIA’s involvement in Mughniyah’s death, given that the US admits the CIA built the bomb, helped track Mughniyah’s movements, and had the power to call off the attack.

The US will no doubt object to this analysis by arguing that the Terrorist Bombing Convention is intended to apply to bombings by terrorists, not bombings of terrorists. That objection would be valid had the US military been involved in the operation instead of the CIA. Justifiably or not, Article 19(2) of the Convention specifically permits acts that would otherwise qualify as terrorist bombing when they are committed by the military forces of a state:

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The CIA, however, does not qualify as the US’s “military forces” under the Terrorist Bombing Convention. Art. 1(4) specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The second provision does not apply, because there is no evidence the CIA was acting under the “formal command, control and responsibility” of the military when it participated in Mughniyah’s killing. And neither does the first provision: although there is no question that the CIA contributes to the US’s “national defence or security,” it is not an “armed force” under US “internal law.” According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

The bottom line: the CIA committed an act of terrorism — actual terrorism, not figurative terrorism — when it participated in blowing up Mughniyah. The US military has the right to kill terrorists with bombs; the CIA does not. There is no doctrine of “close enough” in the Terrorist Bombing Convention.

No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

The Haunting “I Cannot Recall (Ballad of Manus Island)”

by Kevin Jon Heller

Not surprisingly given where I perch on the political spectrum, I love protest songs. One of my favourite jogging playlists is a disparate collection of classics — Buffalo Springfield’s “For What It’s Worth,” Barry McGuire’s “Eve of Destruction,” Country Joe and the Fish’s “I Feel Like I’m Fixin to Die Rag,” Paul Revere and the Raiders’ “Indian Reservation,” Phil Och’s “I Ain’t Marching Anymore” (the greatest anti-war song ever), and a bunch of others.

I’ve now added a new song to my playlist: Peter Joseph Head’s “I Cannot Recall (Ballad of Manus Island),” a very unusual jazz/spoken-word hybrid about Australia’s horrific detention centre in Papua New Guinea. Manus Island has been much in the news lately, because the refugees detained there have gone on a hunger strike — and tried to kill themselves by swallowing razor blades and laundry detergent — to protest their confinement and living conditions. Here is the YouTube video; the spoken words seem to be based on the transcript of a lawsuit involving the detention centre:

You can read about the Melbourne-based Head here, and you can find a higher-quality recording of the song here. I’ve embedded the YouTube video so readers can see images of Manus Island.

Listen. Read. Learn.

Protest.

H/T: Bianca Dillon.

Why the Palestinian Authority Should Avoid Arafat’s Death

by Kevin Jon Heller

So this is a well-intentioned but problematic idea:

The Palestinians want the International Criminal Court (ICC) to launch an investigation into the death of Yasser Arafat, a senior Fatah official announced on Sunday.

Jamal Muheissen, member of the Fatah Central Committee, claimed that Israel was responsible for the death of Arafat, who died in November 2004.

“This file will be presented to the International Criminal Court,” Muheissen told the Palestinian Shms News Agency. “We want to bring the Israeli occupation to trial for every crime it committed against our people.”

[snip]

Arafat, who signed the 1993 Oslo interim peace accords with Israel but then led an uprising after subsequent talks broke down in 2000, died aged 75.

His death came four weeks after he fell ill following a meal, suffering from vomiting and stomach pains, in his Ramallah compound while surrounded by Israeli tanks.

To begin with, even if the Court had jurisdiction, it is unlikely that the OTP would investigate Arafat’s death. There are indeed significant questions about his death, and it would not surprise me if Israel is responsible for it. But the case is far from clear, and the OTP would be hard-pressed to investigate it effectively. So the OTP would almost certainly choose — if it ever opened a formal investigation into the situation in Palestine, which I continue to strongly doubt — to focus on much more obvious crimes committed by Palestine and Israel.

The jurisdictional issue, however, is the real kicker. Arafat died in 2004, so in principle his death is within the ICC’s temporal jurisdiction. And unlike my friend Dov Jacobs, I don’t think Palestine is categorically prohibited from accepting the Court’s jurisdiction earlier than 13 June 2014 through a second Art. 12(3) declaration. But does Palestine really want to force the Court to determine whether it was a state in 2004? The first declaration was very smart — although the judges will still have to decide at some point on Palestinian statehood, the fact that the declaration does not purport to accept jurisdiction prior to UNGA Resolution 67/19 makes it very unlikely the judges will second-guess the OTP. All bets would be off, though, with a second declaration that looked back to 2004. There would be no conflict between the judiciary and the OTP if the judges refused to conclude that Palestine was a state when Arafat died; on the contrary, the OTP seems to believe that Palestine was not a state — at least for purposes of ICC membership — until the UNGA upgraded its status. Moreover, the judges can’t exactly relish having to determine not only when Palestine became a state, but also the proper test for making that determination. So we can expect them to take a very conservative approach to Palestinian statehood.

There is little question that the case for Palestine’s statehood has received a significant boost by its membership in the ICC. The last thing Palestine should do now is risk undoing all of its good work by pushing the Court to investigate an unclear event committed more than a decade ago.

Unfortunately, the ICC Doesn’t Work the Way Palestine Wants It To

by Kevin Jon Heller

According to this report in the Times of Israel, the Palestinian Authority would be willing to forego the ICC if Israel agreed to freeze its settlement activity:

RAMALLAH — A senior Palestinian official said Sunday that the first subject to be brought before the International Criminal Court at The Hague in the Palestinian Authority’s legal campaign against Israel would be settlement construction.

The official told The Times of Israel that land seizures in occupied territory constituted a clear violation of international law. Still, he noted that the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction, and added that the Palestinian Authority had conveyed to Israel an official message to that effect, through Jordan and Egypt.

Unfortunately, the Rome Statute does not allow Palestine to pursue this kind of bargaining strategy. To begin with, now that Palestine has submitted an Article 12(3) declaration and ratified the Rome Statute, the Palestinian Authority (PA) has no say in what, if anything, the OTP decides to investigate. If the OTP wants to investigate only Hamas’s rocket attacks, it can. If it wants to investigate only Israeli and Palestinian crimes in Gaza, ignoring the settlements entirely, it can. If it wants to investigate the settlements but only after dealing with all of the crimes in Gaza, it can. The PA needs to understand that. If it wanted to ensure that the OTP investigated settlements, it needed to avoid ratifying the Rome Statute and submit an Article 12(3) declaration that was limited to the West Bank. I don’t think the OTP would have acted on such a declaration, but that route would have at least limited the OTP to accepting or rejecting the PA’s terms — the OTP would not have had jurisdiction to examine events in Gaza. Once Palestine ratified the Rome Statute, however, it lost even that limited control. Now investigative and prosecutorial decisions are in the hands of the OTP.

For similar reasons, the PA could not “withdraw… the appeal to the ICC” if Israel froze the settlements. The OTP could investigate and prosecute settlement-related activity even if the PA was completely opposed to it doing so. (Just as Israel’s opposition to the Court is legally irrelevant.) The PA could not even prevent the OTP from investigating settlement activity by immediately withdrawing from the ICC — its Article 12(3) declaration would still be in effect, and Palestine would remain a member of the Court for another year. At best such a dramatic act would simply force the OTP to make investigative decisions more quickly.

The ICC might have been an effective bargaining chip with Israel (and Israel’s client state, the US) before the PA submitted the Article 12(3) declaration and ratified the Rome Statute. Once the PA took those steps, though, its leverage ended. Now the fate of the investigation into the situation in Palestine lies solely in the hands of the OTP.

Make Sure to Bring This Visual Aid When You Navigate to the Louvre

by Kevin Jon Heller

Sorry, Lonely Planet, there’s a new travel sheriff in town: Fox News. Witness this map, created by a guest on Fox & Friends to illustrate the eight “no-go” zones — areas under de facto Muslim control — in Paris (out of 741 in France itself):

thefaceofamanwhoknowswhathestalkingabout

Peterson, a former Air Force pilot, went on to describe Paris as “pretty scary” and compared it to Afghanistan, Iraq, and Kashmir. And the Fox & Friends host — an animatronic human being, model name “Elisabeth Hasselbeck” — simply nodded her head knowingly throughout his presentation.

To be fair, this kind of willful ignorance does have an upside: it makes people who watch Fox News much less likely to visit Paris. That’s good for all of us. In fact, the more Fox News viewers think of Europe in general as some kind of 70s-style Soviet hellhole, the better.

(Another upside: I’m supposed to be in Paris in a couple of months. After I get my traditional falafel on the Rue des Rosiers, I’m adding “conflict journalist” to my CV.)

H/T: Richard Metzger at Dangerous Minds. Make sure to read his post to see the hysterically funny French reaction to Peterson’s segment.

Does Renouncing US Citizenship Make You a Bad Person?

by Kevin Jon Heller

Josh Marshall at Talking Points Memo certainly thinks so:

Which brings us back to Roger Ver, variously known as a “Bitcoin entrepreneur” or the “Bitcoin Jesus.” Ver is now a citizen of Federation of Saint Kitts and Nevis. He was so excited about avoiding taxes that as soon as he became a Nevisian he set up yet another start up that would allow you to use bitcoins to buy a Saint Kitts and Nevis passport so you too could avoid US taxes. Alas, it folded after a few months, apparently because the St Kitts government disavowed it.

Unlike Facebook billionaire Eduardo Saverin who renounced his citizenship to avoid US taxes back in 2012, I don’t get the impression that Ver is remotely that rich. He may be worth a few or even many millions of dollars. But he does not seem remotely in the category of 100s of millions, let alone billions. In any case, now he wants a visa to return to the US to speak at a Bitcoin conference this weekend in Miami. But the US has repeatedly denied his requests. And he’s extremely upset at “the tyrants [who] won’t allow me to attend #CES2015, #TNABC or anything in the US.”

Here’s Roger with his “Borders are Imaginary Lines” t-shirt he wore for his appointment at the US Embassy Barbados to apply for a Visa. He even seems to be selling these shirts as a way people can express their opposition to the tyranny that is keeping him from visiting the US.

As I’ve written before, I don’t think American citizens who renounce their citizenship for tax purposes should be allowed to return to the country ever, except possibly under highly extenuating circumstances. Ver is upset that he cannot ditch his US citizenship to live in a tax haven that is – let’s be frank – under the de facto US security and economic umbrella and come back whenever he wants to hang out or hawk bitcoins.

Ver seems like a rather loathsome fellow, but I do not understand Marshall’s position. Why should renouncing citizenship for selfish economic reasons bar someone from entering the US for life? Paying taxes is the price of citizenship; if you don’t pay taxes, you obviously should not receive the benefits that being an American citizen provides. But if you are willing to give up the benefits of American citizenship, why should the reason for renouncing your citizenship matter? Why should you never be able to set foot in the US again? (Especially given that like everyone who spends time in the US, you will still have to pay sales taxes when you’re there.)

In other words, I don’t see any reason why a former citizen should be treated differently than any other foreigner when applying for a visa. Or, perhaps more precisely, I don’t see any legitimate reason. Marshall’s position seems to rest on the problematic idea that being a US citizen is so inherently wonderful that only a terrible person would voluntarily renounce his citizenship for economic reasons. To me, that’s American exceptionalism of the worst kind.

PS: Does any other country have an equivalent to 8 USC 1182, which automatically excludes former citizens who renounced citizenship for economic reasons? Professor Spiro?