Author Archive for
Kevin Jon Heller

Breaking the Silence (About the IDF’s Treatment of Palestinians)

by Kevin Jon Heller

I want to call readers’ attention to a remarkable Israeli NGOBreaking the Silence, which collects the testimony of Israeli soldiers about the brutalization of Palestinians during the occupation. Here is the NGO’s self-description:

Breaking the Silence is an organization of veteran combatants who have served in the Israeli military since the start of the Second Intifada and have taken it upon themselves to expose the Israeli public to the reality of everyday life in the Occupied Territories. We endeavor to stimulate public debate about the price paid for a reality in which young soldiers face a civilian population on a daily basis, and are engaged in the control of that population’s everyday life.

Soldiers who serve in the Territories witness and participate in military actions which change them immensely. Cases of abuse towards Palestinians, looting, and destruction of property have been the norm for years, but are still explained as extreme and unique cases. Our testimonies portray a different, and much grimmer picture in which deterioration of moral standards finds expression in the character of orders and the rules of engagement, and are justified in the name of  Israel’s security. While this reality is known to Israeli soldiers and commanders, Israeli society continues to turn a blind eye, and to deny that what is done in its name. Discharged soldiers returning to civilian life discover the gap between the reality they encountered in the Territories, and the silence about this reality they encounter at home. In order to become civilians again, soldiers are forced to ignore what they have seen and done. We strive to make heard the voices of these soldiers, pushing Israeli society to face the reality whose creation it has enabled.

We collect and publish testimonies from soldiers who, like us, have served in the West Bank, Gaza and East Jerusalem since September 2000, and hold lectures, house meetings, and other public events which bring to light the reality in the Territories through the voice of former combatants. We also conduct tours in Hebron and the South Hebron Hills region, with the aim of giving the Israeli public access to the reality which exists minutes from their own homes, yet is rarely portrayed in the media.

Founded in March 2004 by a group of soldiers who served in Hebron, Breaking the Silence has since acquired a special standing in the eyes of the Israeli public and in the media, as it is unique in giving voice to the experience of soldiers. To date, the organization has collected more than 700 testimonies from soldiers who represent all strata of Israeli society and cover nearly all units that operate in the Territories. All the testimonies we publish are meticulously researched, and all facts are cross-checked with additional eye-witnesses and/or the archives of other human rights organizations also active in the field. Every soldier who gives a testimony to Breaking the Silence knows the aims of the organization and the interview. Most soldiers choose to remain anonymous, due to various pressures from official military persons and society at large. Our first priority is to the soldiers who choose to testify to the public about their service.

What makes this kind of work so effective, of course, is that it is impossible to disregard the soldiers who provide the testimonials — or at least all of them — as “anti-Israel.” On the contrary, these soldiers are true patriots, doing their part in a repressive political environment to save Israel from its Netanyahus and Liebermans.

The Guardian has an excellent story today about Breaking the Silence. You can read it here. And make sure to check out the NGO’s superb website, where all of the testimonials can be found.

Hat-tip: my colleague Anicee Van Engeland.

Libya’s Chutzpah

by Kevin Jon Heller

I had a good chuckle this morning when I read Libya’s latest attempt to avoid complying with its obligation to surrender Saif Gaddafi to the ICC. (Which, of course, it may be genuinely unable to do, given that he’s still being held in Zintan. But that’s another story.)

The source of my amusement is Libya’s new excuse for not being able to file submissions on time:

[D]uring May 2014, there has been a surge in attacks against the Government, particularly in Tripoli and Benghazi, such that the UN Support Mission in Libya has recently expressed its concern over these “various acts of violence, including the assaults on official institutions”. These ongoing exigencies have prevented the Libyan authorities from providing up-to-date instructions on the salient issues. In view of these circumstances, the Government is, understandably, currently focusing its resources on restoring stability and order.

If you followed Libya’s failed admissibility challenge closely, you know that Saif’s defence team at Doughty Street Chambers (full disclosure: I’m now an academic member there) consistently argued that the violence in Libya prevented it from effectively trying Saif. Libya just as consistently rejected that argument, insisting that the violence had no effect whatsoever on its ability to conduct judicial proceedings.

To recap Libya’s position, then: the violence in the country doesn’t prevent the government from prosecuting Saif. But it does prevent it from filing a legal brief withe the ICC.

As I said, I had a nice chuckle.

A Problematic Study of Drone Strikes in Pakistan (Updated)

by Kevin Jon Heller

Lawfare reports today on a study published in Political Science Quarterly about how ordinary Pakistanis view US drone strikes in their country. According to the post, the study “[c]hallenge[s] the conventional wisdom” that there is “deep opposition” among Pakistanis to drone strikes and that “the associated anger [i]s a major source of the country’s rampant anti-Americanism.”

I don’t have access to the study itself, but the polling questions quoted in the Lawfare post seem seriously flawed. Here are the three primary questions about drone strikes:

How much, if anything, have you heard about the drone attacks that target leaders of extremist groups – a lot, little, or nothing at all?

Please tell me whether you support or oppose the United States conducting drone attacks in conjunction with the Pakistani government against the leaders of extremist groups.

Now I’m going to ask you a list of things that the United States might do to combat extremist groups in Pakistan. For each one, please tell me whether you would support or oppose it. [The respondent is then offered]: Conducting drone attacks in conjunction with the Pakistani government against leaders of extremist groups. 

There are two significant problems with these questions. First, it seems like a major stretch to describe the US drone program in Pakistan as being carried out “in conjunction with the Pakistani government” — a formulation that implies that Pakistan and the US are working together. I accept reports that say Pakistan has tacitly or secretly endorsed the US drone program. But the Pakistani government’s public position has always been that the drone program is being conducted without its consent. The “in conjunction with” language is thus seriously misleading — especially given that the ordinary Pakistani will likely be far more familiar with the government’s public position than with the private one revealed in secret cables. Indeed, the second and third questions could easily be interpreted to be asking a hypothetical question (“would you like drone strikes more if they were conducted in conjunction with your government?”), instead of as an assertion of a past and present state of affairs.

The second problem, however, is even more serious. All three questions assert — and assume — that drone strikes in Pakistan target “leaders of extremist groups.” But that is almost certainly not the case. Here, for example, is what the Stanford/NYU “Living Under Drones” report says:

National security analysts—and the White House itself— have found that the vast majority of those killed in drone strikes in Pakistan have been low-level alleged militants. Based on conversations with unnamed US officials, a Reuters journalist reported in 2010 that of the 500 “militants” the CIA believed it had killed since 2008, only 14 were “top-tier militant targets,” and 25 were “mid-to-high- level organizers” of Al Qaeda, the Taliban, or other hostile groups. His analysis found that “the C.I.A. [had] killed around 12 times more low-level fighters than mid-to-high- level” during that same period. More recently, Peter Bergen and Megan Braun of the New America Foundation reported that fewer than 13% of drone strikes carried out under Obama have killed a “militant leader.” Bergen and Braun also reported that since 2004, some 49 “militant leaders” have been killed in drone strikes, constituting “2% of all drone-related fatalities.”

Unless all of these reports are incorrect, the US drone program in Pakistan has never focused on “leaders of extremist groups.” It is thus extremely misleading for the study to ask ordinary Pakistanis whether they support drones strikes that target such leaders. Would the results be the same if the study had asked participants whether they “supported or opposed the United States conducting drone attacks against low-level fighters believed to be members of extremist groups”? I doubt it.

It is a truism of the polling business that poll results are only as good as the questions participants are asked. In the case of the drone study reported in Lawfare, there is reason to be skeptical of both the questions and the answers.

UPDATE: After an email exchange with one of the authors, I think it’s only fair to acknowledge that the questions were formulated and asked by Pew, not by the research team. That said, I still question how useful the answers are, given the problems discussed above.

ICRC President’s Lecture for the Foreign and Commonwealth Office

by Kevin Jon Heller

On May 19, the Legal Directorate of the Foreign and Commonwealth Office held their 2nd Annual International Law Lecture. The lecture was delivered by Peter Maurer, the President of the ICRC, who spoke on “War, Protection and the Law: The ICRC’s approach to International Humanitarian Law.” More information about the speech is available at EJIL: Talk!, but I thought it would be worth posting links at OJ:

  • Video of the talk here.
  • Video of the subsequent Q&A here.
  • Transcript of the talk here.

Well worth checking out!

Joining Doughty Street Chambers as an Academic Member

by Kevin Jon Heller

One of the great advantages of being a legal academic is the ability to get involved in actual litigation. I have consulted on a number of cases at the ICTY, ICTR, and ICC over the years, most obviously serving as one of Radovan Karadzic’s legal associates, but it’s been a while, and I’ve been itching to get back in the game. So I am delighted to announce that I have been invited to join Doughty Street Chambers in London as an Academic Member.

Doughty Street, I think it’s safe to say, has one of the world’s best international-law practices. (And excels in many other areas, such as criminal law.) Its roster of barristers includes such luminaries as:

Geoffrey Robertson QC — one of the founders of the set, who needs no introduction to OJ readers.

Sir Keir Starmer, KCB, QC — the former Director of Public Prosecutions and Head of the Crown Prosecution Service, currently serving as Croatia’s counsel at the ICJ in Croatia v Serbia.

John R.W.D. Jones QC — counsel for Saif Gaddafi at the ICC and Mustafa Badreddine at the STL; former counsel for Naser Oric and Ante Gotovina at the ICTY, both of whom were acquitted.

Tim Moloney QC — one of the leading terrorism experts in the UK, having defended numerous IRA members and Muslims accused of terrorist acts (such as the men accused of the attack on the BBC and the plot to blow up the London Stock Exchange).

Wayne Jordash QC — counsel for Baglishema and Bagaragaza at the ICTR and Sesay at the SCSL; currently acting for Libya at the ICC and Jovica Stanišić at the ICTY.

Amal Alamuddin — counsel for al-Senussi at the ICC and for Julian Assange in his extradition case, as well as advisor to Ben Emmerson, UN special rapporteur on counter-terrorism and human rights, in his inquiry into the use of drones.

I could go on, but that list is enough to explain why I’m so excited — and so honoured — to be joining Doughty Street as an Academic Member. It’s a remarkable opportunity, one for which I’m deeply grateful.

I don’t yet know what cases I’ll be working on, but I’ll let readers know as soon as I do!

How Does a Hybrid Tribunal for Iraq and Afghanistan Sound?

by Kevin Jon Heller

Colum Lynch reports today at FP.com that the United States is pushing for the creation of a hybrid international criminal tribunal for Syria by… the UN General Assembly:

[P]eople familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

Lynch notes that a hybrid tribunal for Syria would be a first for the UNGA, because — unlike the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia — it would need to be created without the consent of the territorial state. (Syria would obviously never consent to such a court.)

In a recent post, Derek Jinks questions whether the UNGA has the authority to create a hybrid tribunal without Syria’s consent. I find his analysis compelling. But here is what I want to know: does the US really want to lead the charge for such a nonconsensual hybrid tribunal? After all, what’s sauce for the goose is sauce for the gander: if the US endorses the UNGA creating a nonconsensual hybrid tribunal for Syria, it will hardly be able to complain if the UNGA later creates, say — just spitballing here — a nonconsensual hybrid tribunal to deal with crimes committed in Iraq and Afghanistan. Either states need to consent to international criminal tribunals or they don’t. So does the US really want to give its blessing to what is an obvious attempt to circumvent P-5′s stranglehold over the Security Council?

Inquiring minds want to know…

ICRC Customary Study Online

by Kevin Jon Heller

Just a reminder to readers: the ICRC’s phenomenal database of customary international humanitarian law is available for free online — and includes a great deal of information that is not available in the two printed volumes. Here is the ICRC’s description:

Today, the ICRC has made available on its online, free of charge Customary IHL database an update of State practice of 7 countries and 3 tribunals relating to armed conflicts and humanitarian issues such as the distinction between combatants and civilians, the use of nuclear, biological and chemical weapons, the protection of internally displaced persons, the protection of children and in particular child soldiers, the prohibition of sexual violence and slavery, the integration of international humanitarian law (IHL) into the training and operations of armed forces, and the prosecution of war crimes.   

Practice up till the end of 2010 of the following countries has been included for this most recent update of the Database: Armenia, Brazil, Cuba, El Salvador, Georgia, Nepal and New Zealand. Case-law of the Extraordinary Chambers in the Courts of Cambodia, the International Criminal Court and the International Court of Justice dealing with questions of IHL has also been updated. New practice is marked in green throughout the Database. 

The purpose of the Customary IHL database is to make not only the rules of customary IHL but also the underlying State and international practice easily accessible by everyone interested in the interpretation and application of IHL. The information in the database is easily accessible by means of three search parameters: subject matter, type of practice and country, which can be used separately or can be combined in a powerful search engine. 

The formation of customary law is an on-going process, as practice keeps evolving. That practice therefore has to be updated regularly to identify the rules of customary law, monitor their potential evolution and assess the extent to which they enhance protection for victims of armed conflict by confirming or filling in gaps in treaty-based law. We will continue to update the database with practice from about 100 countries and a number of relevant international bodies. The next updates of both national and international practice are scheduled for June and July 2014.

The database is updated through a partnership between the ICRC and the British Red Cross. A wide network of ICRC delegations and a number of Red Cross and Red Crescent Societies gather source material for the Database, which is processed under the supervision of the ICRC by a joint ICRC-BRCS research team based in the Lauterpacht Centre for International Law.

The database is an invaluable resource, one I use often. If you’re not using it, you should!

Quote of the Day — Katanga Dissent

by Kevin Jon Heller

Germain Katanga will be sentenced tomorrow, having been convicted of crimes on the basis of an uncharged, unlitigated mode of participation that the Pre-Trial Chamber assured the defence would not be at issue in the trial and that the Trial Chamber first mentioned more than six months after the 30-month trial ended. The Trial Judgment is a horrorshow, replete with statements by the majority blaming the defence team for not having the Kreskin-like ability to anticipate its recharacterization years before it happened and investigate accordingly. In anticipation of what will no doubt be a lengthy sentence, therefore, I offer the following quote from Judge Van den Wyngaert’s dissent:

I find it particularly striking that my colleagues of the Majority, who have needed more than twenty months to produce a judgment in a case of relatively limited dimensions on the basis of a limited amount of evidence that had been, for the most part, known to it for a long time, now find it fitting to criticise the Defence for not being able to conduct a complex investigation with limited resources and under very difficult circumstances in less than two months.

Anyone interested in the ICC should pore carefully over Judge Van den Wyngaert’s dissent, which simply lays waste to the trial judgment. The dissent stands as the lone bright spot in an otherwise dismal case — one that has resulted in perhaps the most unfair conviction in the history of international criminal law.

PS. Readers who are interested in my critique of Regulation 55, governing legal “recharacterization” of facts, might want to read this (updated in light of the Katanga trial judgment).

Ukraine Parliament to Amend Constitution Re: the Rome Statute

by Kevin Jon Heller

As I’ve noted before, Ukraine’s Constitutional Court has held that the Ukraine cannot ratify the Rome Statute because — in the words of the ICRC — “the administration of justice is the exclusive competence of the courts and… judicial functions cannot be delegated to other bodies or officials.” According to the Coalition for the International Criminal Court (on twitter), the Rada is now considering a bill that would amend Ukraine’s constitution to make ratification possible. The text of the bill is in Ukrainian; if anyone out there would like to provide a translation (the bill is short), I’d be most appreciative:

Проект
вноситься народним депутатом України
Ю. Б. Дерев’янком
та іншими народними депутатами України

ЗАКОН УКРАЇНИ
Про внесення змін до статті 124 Конституції України

Верховна Рада України постановляє:

1. Доповнити статтю 124 Конституції України (Відомості Верховної Ради України, 1996 р., № 30, ст. 141) частиною шостою такого змісту:

“Україна може визнати юрисдикцію Міжнародного кримінального суду на умовах, передбачених Римським статутом Міжнародного кримінального суду.”

2. Цей Закон набирає чинності з дня, наступного за днем його опублікування.

Голова Верховної Ради  О. ТУРЧИНОВ
України

I’m intrigued by the fact that Ukraine’s parliament believes it has to amend the constitution in order to ratify the Rome Statute, but is free to accept the ICC’s jurisdiction on an ad hoc basis. The decision of the Constitutional Court prohibits any delegation of Ukraine’s jurisdiction to an international tribunal — which would seem to include ad hoc delegations as well as permanent delegations. But I’m obviously not an expert on Ukrainian law!

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

Did You Know Hazarding a Vessel Was a War Crime? Me Neither.

by Kevin Jon Heller

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that “war crime,” 10 U.S.C. § 950t(23):

(23) Hijacking or hazarding a vessel or aircraft.— Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

Hijacking or hazarding a vessel is not a grave breach of either the Geneva Conventions or the First Additional Protocol. The Rome Statute does not criminalise hijacking or hazarding a vessel. No international tribunal has ever prosecuted the hijacking or hazarding a vessel as a war crime — not the IMT, not the ad hocs, not the ICC. The ICRC’s study of customary IHL does not mention hijacking or hazarding a vessel — although it does note that both the US Naval Handbook (Vol. II, p. 3893)  and The Restatement (Third) of the Foreign Relations Law of the United States (Vol. II, p. 3938) specifically distinguish between hijacking and war crimes. And so on.

How, then, does Judge Pohl somehow conclude that hijacking or hazarding a vessel is a war crime — as opposed to attacking civilians or civilian objects, both of which are war crimes and are both of which are also detailed in al-Nashiri’s charge sheet? By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Seriously. By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Here is what Judge Pohl says (emphasis mine):

The M.C.A. prohibits conduct that “endangers the safe navigation of a vessel.” The similarity between the M.C.A. and the SUA Convention is plain and unambiguous. The SUA Convention proscribes the same conduct the M.C.A. proscribes and of which the Accused is charged… The Commission finds by a preponderance of the evidence the Prosecution has demonstrated the crime of Hijacking or Hazarding a Vessel or Aircraft is based on norms firmly grounded in international law and can be plainly drawn from established precedent. Therefore, the Commission concludes the offense of Hijacking or Hazarding a Vessel or Aircraft was an international law of war crime at the time the Accused allegedly engaged in the conduct, thus conferring jurisdiction over the offense.

That’s it. That’s Judge Pohl’s entire argument. Never mind that the SUA Convention says nothing about the laws of war, applying equally in armed conflict and peacetime. Never mind that the SUA Convention does not even purport to create an international crime — it is, of course, a suppression convention that simply obligates States Parties to domestically criminalise certain acts. Never mind that, even if it is possible to argue that the widespread ratification of the SUA Convention somehow creates a customary rule prohibiting hijacking or hazarding a vessel (difficult in itself), such a customary rule would still not create “an international law of war crime.”

I hope I don’t need to explain in more detail why the widespread ratification of a suppression convention doesn’t create a war crime. But let’s take Judge Pohl’s methodology seriously. Want to know what other kinds of acts are also war crimes prosecutable in a military commission?

  • Nuclear proliferation (NPT — 190 ratifications)
  • Threatening civilian aviation (Safety of Civilian Aviation Convention – 188 ratifications)
  • Drug trafficking (Illicit Traffic in Narcotics Convention – 188 ratifications)
  • Manufacturing hallucinogenic drugs (Psychotropic Substances Convention – 182 ratifications)
  • Using child labor (Worst Forms of Child Labor Convention – 177 ratifications)
  • Transnational organised crime (Transnational Organized Crime Convention – 176 ratifications)
  • Kidnapping diplomats (Internationally Protected Persons Convention – 176 ratifications)
  • Corruption (Anti-Corruption Convention – 167 ratifications)
All of those conventions are suppression conventions — and each has been much more widely ratified than the SUA Convention. According to Judge Pohl’s logic, therefore, all of those acts are also violations of the international laws of war.In the off chance you needed additional proof that the military commissions are a joke, Judge Pohl’s decision is Exhibit A.

No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack…