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Symposium on Occupation Law: The Normative and Functional Approaches to Occupation: A Response to Aeyal Gross

by Eliav Lieblich

[Eliav Lieblich is Associate Professor at Buchmann Faculty of Law, Tel Aviv University.This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Introduction

Living up to its name, Aeyal Gross’s insightful new book engages critically with traditional assumptions of the law of occupation. As in his past work, Gross’s critique here is firmly rooted in traditions of legal realism, critical legal studies (CLS), and – in his constant attacks on binary legal categories – in deconstructive method. In fact, the book can serve as an excellent exposition on critical approaches to law, even for those not specifically concerned with occupation law.

Yet, despite of his critical view of law and its relationship to power, Gross’s thought is not driven by despair or nihilism. Instead, his approach urges jurists to reflect on their work, and to refrain from being passively complicit in the overtaking/perpetuating dynamics of law and power. In this sense, rather than dismissing legal doctrine altogether, as some critical scholars do, Gross analyzes and suggests to reformulate law to reflect what matters to living and breathing human beings, not to legal persons as abstract clusters of rights and duties.

In this comment, I will say a few words about two of the book’s central themes: (1) the normative approach to occupation; and (2) the functional approach to occupation.

The Normative Approach and Per Se Illegality

Gross suggests a normative approach to occupation, which challenges the longstanding view of occupation as a factual, normatively neutral construct. Viewed in the latter way, law only imposes certain limitations on the occupier, while tolerating – and in fact legitimizing – the violations of fundamental rights inherent in the concept of occupation. Accordingly, Gross expands in the book a claim he first formulated together with Ben-Naftali and Michaeli, whereby occupation becomes illegal when it infringes three principles: (1) that the occupier is not the sovereign in the territory; (2) that the occupier is obligated to preserve public order and civilian life in the area; and (3) that occupation must be temporary.

In my view, principles (1) and (3) are interrelated mainly because the perpetuation of occupation blurs the distinction between occupation and annexation. When this distinction is blurred without proceeding to civilian rule, without allowing the political participation of the local population, and without granting them full and equal rights, the distinction between occupation and unlawful regimes such as colonialism, apartheid, or plain military dictatorship collapses.

The distinction between occupation and annexation is not only a temporal one, but also pertains to the nature of the administrative discretion exercised by the occupying power. For this distinction to hold, occupation law must construct the “military commander” – the de facto administrator of the occupied territory – as functionally independent from her state. Her discretion is not one of sovereignty but of trusteeship: it begins and ends with the interests protected by occupation law, while wider state interests must be disregarded. If the commander is made, however, a technical instrument of the occupying state – with no independent discretion whatsoever – again, the distinction between occupation and annexation collapses.

In terms of legal theory, the tension is the following: from the intra-state perspective (at least in dualist states), the military administration in occupied territories is simply an agent of the executive, deriving its power from domestic law. Conversely, from the viewpoint of international law, the military commander draws her power from occupation law. The military administration must somehow operate within this dualism, navigating between its double identity as a state and international organ.

If we examine the situation in Israel-Palestine, this double identity has been brought to a breaking point with the recently passed “Judea and Samaria Settlement Regulation Law.” In this law – the constitutionality of which is now pending in the Israeli Supreme Court – the Israeli legislature directly compels the military commander in the West Bank to seize, in certain situations, private Palestinian lands taken by Jewish settlers, and to legalize these takings. Obviously, this law – beyond compelling the commander to violate Article 49(6) of Geneva Convention IV – suffers from another layer of illegality by disregarding that power to act in the occupied territories derives from international law alone. Therefore, the Israeli parliament cannot override the military commander’s duty to exercise independent discretion while performing her obligations under international law.

The Functional Approach

The functional approach to occupation, expounded in Gross’s book, has its roots in Felix Cohen’s classic critique of the excessive recourse by jurists to abstract legal terms, in detachment from their operation in the real world. Cohen referred to this as “transcendental nonsense” and called to examine law in functional terms, that is, according to its actual influence on people.

Throughout the book, Gross illustrates how the concept of “occupation,” in its formal sense, suffers from this syndrome. By altering the formal designation of a situation from one of occupation to “non-occupation,” states seek to reduce their obligations toward people, although they continue to exercise power over their lives. Conversely, Gross calls not to ask whether a territory is formally “occupied,” but to ask two other questions: (1) what are the facts on the ground; and (2) whether obligations derived from occupation law should apply in these circumstances.

The functional approach to occupation law emerged directly from practice, and specifically from the attempt to makes sense of the peculiar relations between Israel and Gaza after Israel’s 2005 “disengagement” from the territory. Initially, this question was discussed in binary terms: does the situation qualify as occupation or does it not? Gross was perhaps the first to identify the problem of this binary discourse – including in a symposium in this blog – as on the one hand, Israel maintains control over many aspects of life in Gaza, while on the other, it does not have “boots on the ground” in the territory. Gross argued, since 2007, that Israel’s post-disengagement obligations toward Gaza should not be examined in formal, abstract and binary terms. Instead, we should ask the opposite question: does Israel influence the lives of Gaza’s citizens? Does this influence relate to functions that can be viewed as governmental (such as control of the population register, the air space, and so forth)? If so, whether or not we use the formal term “occupation” to describe the aggregate of these powers, by virtue of its de facto control over government functions in Gaza, Israel is both morally and legally required to administer these functions in accordance with what occupation law requires: namely, to act positively for the benefit of the protected population.

The functional approach has practical implications and can be extremely helpful to counter attempts by states to exercise control without responsibility. It is unsurprising, thus, that it was adopted by the ICRC in its updated commentary on the Geneva Conventions. For instance, during 2014’s Gaza conflict (Operation Protective Edge), some Israeli jurists argued – in a legal opinion that was discussed in the Israeli parliament – that Israel was permitted to cut off water and electricity provided to Gaza because Gaza is not occupied territory. To them, if Gaza is not occupied according to the formal definitions of occupation (no military presence on the ground), then Israel has no positive obligations toward its population (to act in favor of the population), but only negative obligations derived from the laws on the conduct of hostilities (not to inhibit those acting in favor of them).

By contrast, the implementation of the functional approach’s two stages clearly indicates that such a cutoff would be illegal: (1) factually, the Gaza Strip is (almost) entirely dependent on Israel for its electricity supply, partly because Israel alone controlled the territory for almost forty years; (2) the control of electricity supply is a governmental function and, therefore, concerning this specific government function, Israel should be subject to the positive obligations of occupation law. Indeed, it impossible to wield quasi-government powers on the one hand and, on the other, to deny the obligations that flow from them. Twelve other Israeli international jurists (including me) submitted such an opinion reflecting this line of argument concerning this question , in contrast to the legal opinion read in parliament.

Like every legal doctrine, however, the functional approach is not perfect. In a sense, it almost willfully gives rise to new ambiguities. For instance, until now, this approach has been understood to delineate state obligations after removing troops from “fully” occupied territories. Yet, if we take this approach seriously, it is unclear why a previous “full” occupation is needed to begin with. Assume that using peaceful means only – say, through state-run corporations – State A takes over the natural resources of State B. Functionally, isn’t State A now exercising control over a governmental function in B, sens previous occupation or even armed conflict? If so, shouldn’t obligations from occupation law apply? And if this is true, isn’t the connection between the functional approach and IHL rather tenuous? Doesn’t it collapse, at the end of the day, to a close variant of international human rights law, applied extraterritorially?

Furthermore, Gross views indeterminacy as a characteristic feature of occupation. This indeterminacy enables the occupying state to manipulate the status of the territory according to its own interests, while maintaining a façade of legality and legitimacy. The paradigmatic example – analyzed in detail in the book – is Israel’s official attitude toward the West Bank, which recognizes the situation as occupation when this allows exercise of power (for example, the power to enact security legislation), while simultaneously denying the existence of occupation, on purely formal grounds, when occupation law limits state action (for example, by prohibiting the transfer of population to the territory). The functional approach, according to Gross, will make it harder to play this “pick and choose” game. It exposes functional power, and thereby limits the ability to mask wrongful actions with formal indeterminacies.

Yet, we should ask whether indeterminacy is indeed an inherent, rather a historically contingent, situation. Counterintuitively, at the basis of the opportunistic use of indeterminacy is a yearning for legal legitimacy, which, in turn, assumes a domestic and international order that still perceives adherence to law as a virtue. If one discards this notion, resort to indeterminacy to conceal violations of law is unneeded, because law itself becomes unimportant. In other words, if states are not embarrassed by violations of law, they don’t need to manipulate law by taking advantage of its indeterminacies to begin with. They can simply claim that law is irrelevant. In this context, by exposing manipulations of law, critical approaches might be “fighting the last war.” Arguably, we are living in times of post-embarrassment, in which even legal apologetics are abandoned. In such times, indeterminacy might be replaced by utter clarity—an unambiguous admission by (some) states that they simply do not care about international law. Therefore, the next legal fight might not be against the abuse of legal indeterminacy, but rather, against the very clear and straightforward discarding of international obligations altogether.

Symposium on Occupation Law: Writing ‘The Writing on the Wall:’ Why and How to Rethink The Law of Occupation

by Aeyal Gross

[Aeyal Gross is Professor of Law at the Tel Aviv University Law School. He is also Visiting Reader in Law at SOAS, University of London. In Fall 2017 he will be a Fernand Braudel Senior Fellow at the European University Institute.This post is part of an ongoing symposium on Professor Aeyal Gross’s book  The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

When I started writing on the law of occupation about twelve years ago, the contemporary case law concerning occupied territories was scanty. The Israeli Supreme Court had a very big roster of cases but, other than a few Cyprus related cases from the European Court of Human Rights (ECtHR), not much more was available. In the course of my work on The Writing on the Wall, however, new case law began to emerge. Some of it followed the occupation of Iraq, when UK courts and later the ECtHR made important judicial pronouncements on the application of human rights in occupation. Other cases came from the engagement of the International Court of Justice with Israel in the Occupied Palestinian Territory (OPT) and with Uganda’s occupation of parts of the Democratic Republic of Congo. The ECtHR also revisited the Northern Cyprus question and issued significant decisions concerning occupation (or lack thereof) in Nagorno-Karabakh.

These cases brought up questions that intrigued me in the context of the Israeli-Palestinian case: what is a military occupation? How do we determine that it exists, and how do we know if it has ended? Does this category offer appropriate protection to occupied populations or does it legitimize new forms of dispossession? Does applying human rights in occupation in addition to the traditional framework of international humanitarian law (IHL) help or hinder the protection of occupied populations?

In 2000, when the Second Intifada began, a debate emerged within human rights organizations in Israel. Up until then, human rights groups had usually focused on specific violations of the law of occupation based on a widely shared view stating that international law has nothing to say about the legality of occupation as such. I held, however, that addressing particular violations legitimized continued Israeli control under the cover of occupation as a temporary regime, and that the traditional understanding of occupation in international law as merely a factual situation is partly responsible for this legitimation effect. This debate led me to develop the thesis that the acceptability of occupation as a legal regime rests on several basic norms. Chief among them is the principle that occupation is a temporary deposit and, should the occupier depart from it, occupation is illegal. Orna Ben-Naftali was developing similar ideas at the very same time and, after teaming up with Keren Michaeli, we published our article “Illegal Occupation.” The Writing on the Wall begins from where we left off in that article, focusing on the need to shift from a “merely factual” approach to occupation to what I term a “normative approach.”

In 2005, Israel withdrew its settlers from the Gaza Strip and ended its permanent military presence there. Since Israel retained control over many aspects of life in Gaza, a debate ensued as to whether Gaza was still occupied territory. To me, these discussions seemed like an enactment of Felix Cohen’s “heaven of legal concepts,” where legal concepts are “thingified” in what Cohen characterizes as “transcendental nonsense.” Insofar as we continued to deal with it in the on/off terms of traditional international law, occupation fitted Cohen’s category of “magic solving words,” referring to terms incapable of solving anything. Cohen’s legal realist approach suggests that norms should not follow from abstract concepts but rather the opposite. When applying Cohen’s insights to occupation law, we need to consider whether the liabilities and duties of an occupier should attach to certain acts. The backdrop was thereby set for a functional approach to occupation, which looks at the substance of control rather than at whether there are “boots on the ground.” In the course of the writing, the normative and functional approaches were increasingly revealed as complementary. If occupation is a normative rather than merely a factual framework, it entails duties when the occupant continues to exercise power, even if control no longer takes the form of “boots on the ground,” as in Gaza. The first two chapters of The Writing on the Wall are devoted to the normative and functional approaches and their mutual relationships. The last two chapters consider the application of international humanitarian law and human rights law in situations of occupation, reflecting my critical concern re their legitimizing role and pointing to their nature as double edged swords. Regarding human rights, my discussions in the book developed in the wake of Israeli Supreme Court cases that applied human rights law in the OPT. Reading these cases, I realized that a rights analysis shifts the vertical balance between the rights of the occupied and the security of the occupier to a horizontal balance between both parties’ rights. Applying human rights, then, upsets the balance built into IHL—which ensures special protections to people living under occupation—and widens the justification for limiting their rights. In the Israeli case, the settlers’ security adds a burden unanticipated in international law. For example, to protect settlers from potential violence, Israel’s High Court of Justice allowed the demolition of Palestinians’ houses. While humanitarian law places strict limits on the destruction of civilian property in occupied territories, a human rights analysis allowed to “balance” the property rights of Palestinian owners against the rights of settlers that the occupying army claimed it must protect.

The book offers a critique of the legal framework and a different way of thinking about occupation, without pretending that a normative and functional approach is a panacea to the flaws of the current approach. It considers the application of IHL and human rights law in occupation from a critical perspective, showing they may not only offer protection but also legitimize dispossession and oppression.

The first two chapters of the book look at the occupation framework (what I call jus ad occupation), and the last two look at the application of humanitarian law and human rights in occupation (what I call jus in occupation). In between is Chapter 3, which functions as a bridge and closely examines the Israeli occupation of the OPT and its legal history through the perspective of the book’s different themes. The analysis points out how the official Israeli position created legal indeterminacy as to the OPT’s status, when definitions of it as occupied/not occupied played out against one another. This uncertainty enables a “pick and choose” regime, whereby Israel acts as both occupier and sovereign, while Palestinian residents of the OPT enjoy neither the full rights of protected persons under humanitarian law nor citizenship rights in Israel. This chapter considers how this indeterminacy and the repeated description of the situation as sui generis allowed for control through indeterminacy at different stages of the occupation—after 1967, after the 1993 Oslo agreements, and after the 2005 Gaza disengagement. The chapter aims to explain the complex legal and political mechanisms serving as the building blocks of Israel’s control that, besides creating indeterminacy, include a shift toward a reduction of direct friction meant to render the occupation invisible (through Oslo, the disengagement, the wall, and the privatization of checkpoints). Another major building block is the rise of the proportionality analysis focusing on means-ends tests, which isolates cases rather than enabling a broader context and artificially separates the authority to act from the ways this authority is exercised. I believe that looking at these processes together, as I do in Chapter 3 and more generally in the book, is crucial to understanding the role of law in this occupation, and indeed in occupations in general.

I am grateful to Opinio Juris for devoting a symposium to the book. Its 2012 symposium dealing with the functional approach, which opened with a post where I outlined it, was an important milestone on the way to the book and it is exciting that, in a way, we have now come full circle. I am thankful to the authors of the posts that will follow for engaging with my work and look forward to reading their contributions.

Symposium: Aeyal Gross’s “The Writing on the Wall”

by Kevin Jon Heller

Over the next three days we will be featuring an online discussion of my SOAS colleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a symposium on the functional approach to occupation — more than five years ago. So it’s fitting that we discuss his book on the blog now!

We are delighted to welcome a number of commenters, including Eliav Lieblich (TAU), Valentina Azarova (Koç) (who also contributed to the earlier symposium), Diana Buttu (IMEU), and Eugene Kontorovich (Northwestern). Aeyal will respond to the comments at the end of the symposium.

We look forward to the conversation!

Events and Announcements: August 27, 2017

by Jessica Dorsey

Call for Papers

  • Call for Papers – Human Dignity and Human Security in Times of Terrorism. The T.M.C. Asser Instituut and the International Association of Constitutional Law invite the submission of abstracts for a one day conference on “Human Dignity and Human Security in Times of Terrorism”, taking place at the Asser Institute in The Hague on 14 December. The organisers seek papers that are characterised by a critical legal reflection, that make an explicit link to the concept of human dignity and human security, and that think out of the box. Abstracts (of maximum 1000 words) should be submitted to Dr. Christophe Paulussen, c [dot] paulussen [at] asser [dot] nl, by 23 September 2017. Please include your name, e-mail address and a CV. Full papers (of around 10,000 words, including footnotes) are to be submitted by 1 March 2018. Dr. Christophe Paulussen and Prof. Martin Scheinin will make the final selections, and will later edit the full papers to be published by T.M.C. Asser Press and distributed by Springer in March 2019.For more information on the submission guidelines visit our website.

Announcements

  • On September 11, ASIL will hold a live webcast  on, “International Law and the Trump Administration: The Use of Force.” Jack Goldsmith and Oona Hathaway will be joining us for this discussion. The webcast will be streamed live at 11:30 AM ET and will then be made available on our website and youtube page. More information is available at www.asil.org/trump.
  • On 26 and 27 October, the Conference on the Legitimacy of Unseen Actors in International Adjudication will take place in The Hague, co-organised by the PluriCourts Centre of Excellence (Oslo University) and the Europa Instituut (Leiden University). ‘Unseen actors’ are central to the ‘institutional makeup’ of international courts and tribunals as registries and secretariats, law clerks and legal officers may exert varying levels of influence on the judicial process. At this conference, legal and political science scholars and members of adjudicatory institutions will consider and discuss the legitimacy of assigning ‘unseen actors’ certain roles in the judicial process as well as the implications thereof for the dispute settlement mechanism as such. The Conference Programme and link for registration are now available here . For more information, please email Prof. dr. Freya Baetens at freya.baetens@jus.uio.no .
  • The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories. Criteria: Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate. Eligibility: Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed. Submission: Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. Printed submissions must be sent to: Professor Laurie Blank, Emory University School of Law, 1301 Clifton Road, Atlanta, Georgia  30322, USA. Electronic submissions must be sent to: Lblank[at]emory.edu. Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize. Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018.

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

The Al-Mahdi Reparations Order at the ICC: A Step towards Justice for Victims of Crimes against Cultural Heritage

by Alina Balta and Nadia Banteka

[Alina Balta is a PhD Researcher at Tilburg Law School, INTERVICT. Nadia Banteka is an Assistant Professor in International Law & Victimology at Tilburg Law School, INTERVICT. This blogpost is a product of the Intervict Reparations Initiative, commissioned by the NWO-VIDI Project, A Waste of Time or No Time to Waste.]

On August 17, 2017, the International Criminal Court (ICC) handed down its Order on Reparations in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi.  Al Mahdi was previously sentenced to nine years’ imprisonment, following a Trial Chamber’s decision on September 27, 2016.  He was convicted as a co-perpetrator for the war crime of attacking protected objects under articles 8(2)(e)(iv) and 25(3)(a) of the Rome Statute. The protected objects include ten buildings of religious and historical character, nine of which are UNESCO World Heritage sites in Timbuktu, Mali. The Court’s Order on Reparations marks the first time the ICC has awarded reparations for victims of crimes against cultural heritage.

The decision marks the first time the ICC has awarded reparations for victims of crimes against cultural heritage. This decision is also notable in its intended scope: the Court aimed to address all types of harm suffered by the victims through its awards of individual, collective, and symbolic reparations. The order assessed the economic and moral harm suffered by the victims and acknowledged the mental pain and anguish that the victimized communities experienced (para. 89). The decision thus demonstrates respect for the culture of the victims, and by providing reparations, the Court created precedent for protecting the spiritual and religious connection between the victimized communities and protected buildings.

Interestingly, the Al-Mahdi decision is the first time the Court urged the TFV to prioritize individual reparations over collective ones in implementing the award (para. 140).  While the Court recognized the TFV’s general position to prioritize collective reparations, it expressed its strong view that the extent of harm inflicted on certain individuals called for prioritizing individual reparations instead.  Through this approach, the order aims to acknowledge the individual victimization of those it has singled out for individual reparations. However, we believe that collective reparations are equally important in this case.  Collective reparations acknowledge the communal harm, bring the victims together, and set out to reconstruct the community’s sense of wholeness.  In its Judgement in the Al-Mahdi case, the Court found that the perpetrator destroyed the cultural heritage of the people of Timbuktu, Mali, and to an extent, the world (para. 56), with the intent to “break the soul” of the people of Timbuktu by attacking their religious and historical identity (para. 80).  Taking into account the nature of victimization, both modalities of reparations should carry the same urgency of implementation here.

The decision is also the first order on reparations that includes guarantees of non-repetition. The open-ended letter of article 75(2) of the Rome Statute offers judges discretion in putting forward different reparations measures. The ICC has given this article a wide margin of interpretation on what measures may form part of reparations. For example, this happened in the form of symbolic measures of satisfaction, such as a perpetrator’s apology, offered by Lubanga and Katanga in the cases against them, and now Al Mahdi’s. (para. 70)  The guarantees of non-repetition in the Al-Mahdi order represent a novel exercise of this discretion.

Guarantees of non-repetition traditionally aim to prevent the reoccurrence of crimes by addressing the institutional roots and structural causes of the violations involved.  That is why we often encounter this measure in cases concerning human rights violations and crimes committed by states that require systemic changes to ensure such atrocities are not repeated.  Often, they result in institutional or legislative reforms, vetting and training of public sector personnel, educational plans that address past struggles constructively, and development programs. The measure itself forms part of the Basic Principles on Reparations, as well as the Impunity Principles and, if implemented strategically, can no doubt have a rather far-reaching effect given the state’s capacity and willingness to implement it.

The Al-Mahdi case presents an intriguing application of guarantees of non-repetition as it concerns the non-repetition of war crimes against cultural heritage.   It will be interesting to see how the Trust Fund for Victims (TVF) responds to the challenge of framing specific reparation measures that can materialize in such non-repetition guarantees in this case.  Though in largely different contexts, the Inter-American Court of Human Rights has used guarantees of non-repetition extensively as part of its reparations judgments and may offer some useful paradigms for implementation.  As the recent reparations order provides, these measures are to be taken to the extent possible and following consultations with the government authorities in Mali (para. 67).  They could include setting into place mechanisms or protection measures facilitated by the Malian government to guarantee the non-recurrence of similar threats against cultural heritage. UNESCO has already undertaken emergency action in Mali by providing cultural heritage protection trainings to UN personnel but also to the Malian armed forces.  An increase and strategic implementation of similar measures can contribute to the goals of instilling a sense of safety to the already traumatized victims and achieving sustainable justice.

At the same time, the Court returned to concept of “deterrence” that it had employed in the Lubanga order, even though it had chosen to depart from this language entirely in the Katanga decision.  More specifically, the Court in Lubanga had suggested that the “wide publication of the decision may also serve to […] help deter crimes of this kind” (para. 238).  However, the Court in the Al-Mahdi case made a conceptual alteration: it spoke of “reparations being designed” – to the extent achievable – to “deter future violations” (para. 28).  While the wide publication of a conviction decision, such as that in Lubanga, may reasonably be expected to achieve some level of general deterrence, we find it more difficult to understand the logic behind reparations having a deterrent effect.  The underlying idea of reparations is that they respond, to the extent possible, to the suffering caused by the crimes, by alleviating some of the harm and doing justice for the victims.  Reparations have been loosely connected in the past, such as in the context of the Holocaust, with the goal of deterring future leaders from similar criminal policies by pledging to repudiate the past and rebuild the constitutional order.  However, in the Al-Mahdi case it is difficult to envision how the reparations order would achieve a deterrent effect in and of itself given the nature of the offenders and crimes involved.

But perhaps more pressingly, seeing reparations as a means to deter future violations runs the risk of assuming an economic perspective on reparations for crimes within the ICC jurisdiction.  In international criminal justice, reparations are largely understood as having a proportional relationship with the victims’ harm: the means to repair the harm determines the nature of the reparations.  A cost-benefit analysis of reparations would shift the focus—instead, we would ask what level of punishment through reparations would be sufficient to deter future wrongdoers.  This level may be completely unrelated to the victims’ harm suffered.  We do not contend that this is what the Court intended to do in this reparations order.  Rather, our goal is to draw attention to the potential risks that the malleable concept of reparations in these proceedings carries.  Admittedly, reparation measures in the form of guarantees of non-repetition may incorporate an element of deterrence based on past conduct (e.g. Case of Myrna Mack Chang v. Guatemala (25-11-2003) (Series C No. 101)) but this connection was not made clear in the current reparations order.

Finally, it is important to keep in mind that, although the Court assessed Al Mahdi’s individual liability for reparations to 2.7 million Euro, this measure has only symbolic and moral value.  While the financial circumstances of the convicted person should not have any impact on the reparations award or its enforcement (para 114), Al-Mahdi’s indigent status means that the burden of financing potential reparation measures will fall on the already strained budged of the TFV, which is tasked with drafting an implementation plan.  In the implementation process, it is essential that the TFV first consult with affected communities to take into account all local conditions in proposing concrete implementation measures. Doing so will be all the more challenging as the security situation in Mali remains worrying and uncertain despite progress.

In all, the ICC’s reparations order in Al-Mahdi’s case is a step forward for international justice through reparations. The Court confirmed some of the foundational elements of reparations it first laid out in Lubanga and Katanga and went on to set an important precedent for crimes against cultural heritage.  Perhaps in the next reparations orders, we will witness more instructive language regarding the concept of deterrence through reparations, and further consideration of both collective and individual harms in determining the circumstances in which prioritization of reparations modalities is desirable.

Workshop CfP: Contingency in the Course of International Law

by Kevin Jon Heller

I am delighted to release the call for papers for a workshop I am organising with Ingo Venzke, my fantastic colleague at the Amsterdam Center for International Law. The workshop is entitled “Contingency in the Course of International Law: How International Law Could Have Been” and will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale). The workshop will be held over two half days and one full day from June 14-16 2018. Here is our description of the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The workshop is open to everyone from PhD students to senior scholars — from law and from outside it — and the deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

Open Access for All? Think Again

by Jan Klabbers

[Jan Klabbers is the Deputy Director of the Erik Castren Institute of International Law and Human Rights.]

Almost all governments are almost always engaged in rewriting almost all of the national histories of their states. What should come as an unpleasant surprise though is that Cambridge University Press proves to be a willing accomplice. The Guardian reported last Saturday that CUP blocked access in China to over 300 articles published in The China Quarterly (and here’s a follow-up). This is not just any journal; its editor is based at SOAS, and its website proudly claims that it is ‘the leading scholarly journal in the field’. The blocked articles have in common that they all deal with awkward political issues, ranging from the Cultural Revolution to the 1989 Tiananmin Square masacre, as well as the situation in Tibet – international lawyers may be interested in hearing that among the blocked pieces is an analysis of the Tibet question under international law by Alfred Rubin, published in 1968, nearly fifty years ago.

The upshot of all this is rather disturbing: Chinese historians, lawyers and social scientists get access to parts of The China Quarterly, but not to all of it. They might think they have the entire repository available to them, but they do not. The history accessible to them does not include the Cultural Revolution, nor Tiananmin Square, nor Tibet: to Chinese researchers – and the public at large – these events may simply never have taken place. It is troubling, but to be expected, that governments rewrite history; but when academic institutions collaborate, things really start to unravel. Academic institutions somehow stand for independence of thought and research, for neutrality, for objectivity, and are among the few institutions capable of providing a counterbalance to the airbrushed narratives governments may wish to endorse.

CUP acknowledges that it blocks articles, and justifies itself with the familiar consequentialist logic: pragmatically, a limited amount of articles is blocked, in order for others to remain available. This is the kind of logic that may work when encountering a mugger in a dark alley, but it is less persuasive in reiterative settings: you give in once, and you may never be able to turn the situation around. What is also troubling, on a different level, is that procedural decisions such as these are far less innocent than they may seem. Caving in to censorship demands ultimately undermines everything academia stands for, yet is breezily presented as a pragmatic solution.

All this would be bad enough when done by a cut-throat commercial publisher. What somehow makes it worse though is that it is precisely CUP that is involved, the oldest academic publisher in the world, whose website highlights a commitment to doing business responsibly and proudly speaks of delivering ‘the best learning and research solutions’. Well, no, not to Chinese readers. Most of my own books are published by CUP, and I have always felt that CUP would be a natural fit, precisely because of its academic orientation. In light of the above, however, I’m not so sure anymore.

Saudi Arabia Threatens to Shoot Down a Qatari Airways Plane

by Kevin Jon Heller

Saudi-owned TV news network Al Arabiya aired a video simulation yesterday that shows a Saudi Arabian fighter shooting an air-to-air missile at a Qatari Airways plane. Here is the video:

That’s bad enough — but what is truly horrifying is the accompany voiceover, which intones the following:

International law permits states to shoot down any aircraft that violates a state’s airspace, classing it as a legitimate target, especially if flying over a military area.

No, it doesn’t. This is wrong on so many levels. To begin with, shooting down a Qatari Airways plane would categorically violate the Chicago Convention on International Civil Aviation, which Saudi Arabia ratified more than 50 years ago. Art. 3bis, which has been in force since 1998, provides as follows:

a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.

The second sentence recognises that Saudi Arabia would have every right under the UN Charter to defend it against armed attack — if, for example, the Qatar military decided to use a Qatar Airways plane for offensive military purposes. But although a civilian Qatar Airways plane would no doubt violate the principle of non-intervention if it intentionally entered Saudi airspace, thus giving rise to Qatari state responsibility (because Qatar owns Qatar airways), the mere fact of intentional entry would not remotely qualify as an armed attack — much less one that would justify the use of lethal force in self-defense.

The conclusion is no different under the jus in bello. A Qatar Airways plane would not become a legitimate target by flying over a Saudi “military area” — much less simply by entering Saudi airspace. Indeed, neither act would even be a use of force sufficient to create an international armed conflict between Qatar and Saudi Arabia. So IHL would not even apply.

We need to be clear about what the video represents. Quite simply, Saudi Arabia is threatening to engage in state terrorism — the use of violence to spread panic among Qatari civilians in order to persuade the Qatari government to supposedly stop supporting terrorist groups. (Something the Saudis know more than a little about.)

Saudi Arabia is a fundamentally lawless state. I’d like to think this horrific video could prove to be its Charlottesville moment, finally convincing the US and the UK that the Saudi government has no intention of complying with international law. But I’m not going to hold my breath. If routinely massacring civilians in Yemen isn’t enough, what’s casually threatening to blow up a civilian Qatari plane?

And So It Begins… Social Media Evidence In An ICC Arrest Warrant

by Emma Irving

[Emma Irving is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University]

The ICC’s most recent arrest warrant, issued on the 15th August 2017, should have us all talking for one important reason: it is the first ICC arrest warrant to be based entirely on evidence collected from social media. This was a move that was bound to come, and it aligns the ICC with the realities of many of today’s conflicts.

The ICC arrest warrant in question was issued against Mahmoud Mustafa Busayf Al-Werfalli, in the context of the Libya situation. Mr. Al-Werfalli, an alleged commander within the Al-Saiqa Brigade, is accused of having committed or ordered 33 murders in Benghazi or surrounding areas in June 2016 and July 2017. The crimes are alleged to have taken place during the Al-Saiqa Brigade’s participation in Operation Dignity, an operation which began in May 2014 as a coalition effort to fight terrorist groups in Benghazi.

The charge of murder as a war crime under Article 8(2)(c)(i) of the Rome Statute is based on seven separate incidents captured in seven separate videos. The Pre-Trial Chamber decision describes the events in these videos, some of which show Mr. Al-Werfalli shooting individuals himself, and some of which show him ordering others to commit executions:

Mr Al-Werfalli, wearing camouflage trousers and a black t-shirt with the logo of the Al-Saiqa Brigade, and carrying a weapon, is seen in a video footage shooting with his left hand three male figures in the head (§12)

Mr Al-Werfalli is seen speaking into the camera and then raising his left hand in the air and sweeping it down towards the ground in a manner that suggests that he is ordering the two men to proceed with the execution. The men shoot the persons kneeling, who fall on the ground. (§16)

The first of the seven videos is stated to have been posted to Facebook, while the other six are simply described as having been posted to social media. It is not clear whether the videos were posted by the Al-Saiqa Brigade itself or by a third party. At least some of the material appears to have been posted by the group itself, as early in the decision the Pre-Trial Chamber notes that the evidence supporting the application for the arrest warrant comes from ‘social media posts by the Media Centre of the Al-Saiqa Brigade’ (§3).

That the ICC has turned to social media evidence (also referred to as open-source evidence) is significant. In many of today’s conflicts (more…)

Why the Security Council Should Not be Involved Regarding Al-Bashir’s Immunity

by Alexandre Skander Galand

[Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University; Ph.D. in Law (EUI).]

In a post published in September 2015, I asked whether the International Criminal Court (ICC) was in need of support to clarify the status of Heads of States’ immunities. My post followed the ICC Pre-Trial Chamber II (PTC II) request for submissions from the Republic of South Africa (RSA) with regards to the stay in its territory of the Head of State of Sudan, Omar Al-Bashir, on June 14-17, 2015.

Following UN Security Council (UNSC) Resolution 1593 (2005), referring the situation in Darfur to the ICC, two warrants of arrest have been issued against Al-Bashir for war crimes, crimes against humanity, and genocide. Sudan is not a State party to the Rome Statute, and many States have hosted Al-Bashir on the premise that he is protected by his immunity as the Head of a State not party to the Rome Statute. On 6 July 2017, after 2 years of proceedings, PTC II found that RSA failed to abide by its obligation under the Rome Statute to arrest and surrender the most wanted ICC fugitive. Nevertheless, the PTC also opined that a referral of the matter to the Assembly of States (ASP) and/or the UNSC, as provided in article 87(7) Rome Statute, was needless.

In this post I argue that two reasons lie behind PTC II’s decision to not refer the RSA. First, it is an acknowledgment that the ICC case law on the immunity of non-party Heads of States is cloudy. And, second, the PTC II foresaw that such referral would have seriously backfired. A referral would not have led to an environment conducive to the arrest of Al-Bashir, but quite the opposite: it could have incentivized the long called for use of an Article 16 deferral.

  1. Whatever the ratio decidi, Al-Bashir must be arrested and surrendered

On the eve of Al-Bashir’s travel to Johannesburg, Judge Tarfusser (acting as an ICC Single Judge) had affirmed (.pdf) to the RSA’s ambassador that there was nothing to consult upon (under article 97 Rome Statute) with the Court regarding the obligation to arrest Al-Bashir, as there was a very clear ICC case law establishing that Sudan’s Head of State immunities had been implicitly waived by the UNSC. Very intuitively, Judge Tarfusser responded to the Ambassador’s call for revisiting this case law that if the matter went before a full chamber, it “could decide in a slightly different way. I cannot imagine completely opposite but in a slightly different way.”

Judge Tarfusser was right! PTC II (with Tarfusser as Presiding Judge) decided in a different but not opposite way: the obligation to arrest Al-Bashir stands but his immunity has not been waived. In the Decision on South Africa’s failure to arrest and surrender Al-Bashir (South Africa Decision), PTC II exposed three theories on the inapplicability of immunities before the court of a State implementing an ICC arrest warrant.

First, the PTC II completely discarded its previous holding in Decision on Malawi’s Failure to Arrest and Surrender Al-Bashir (.pdf) (Malawi Decision) and the Special Court of Sierra Leone’s Decision on Taylor Immunity (.pdf). Indeed, the PTC II acknowledged to be ”unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court.” (para. 68) Note that the PTC was cautious enough to underline that this finding did not apply to its own exercise of jurisdiction, but to the arrest and surrender, which is an exercise of jurisdiction that only States can undertake.

Second, the PTC decided not to go by the Decision on DRC’s Cooperation Regarding Al-Bashir’s Arrest and Surrender (.pdf) (DRC Decision) where it held that the UNSC had implicitly waived the immunity of Al-Bashir. Three years earlier, this theory seemed useful as it served to reject the African Union (AU)’s arguments (.pdf) against the Malawi Decision. According to the DRC Decision, Sudan’s obligation under Chapter VII to cooperate fully fitted within the exception provided in article 98 (1) Rome Statute, which reads: ”unless the Court can first obtain the cooperation of that third State [Sudan] for the waiver of the immunity.” The implicit waiver under Chapter VII also tackled, on the premise of Article 103 UN Charter, DRC’s claim that it was bound by the AU resolutions obliging its State parties not to arrest Al-Bashir. On this conflict of norms between the ICC order and the AU order, the PTC II used the Chapter VII’s trumping power to declare that ‘the DRC cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.’

The DRC Decision had been reiterated by the ICC several times since 2014. However, during the hearing on its non-compliance, the RSA raised a fair point on the interpretation of the UNSC’s resolutions in a way consistent with existing law on immunities, questioning whether the immunities Heads of States are normally entitled to under customary international law can be implicitly waived. The RSA referred to various sources including article 32 of the Vienna Convention on the Law of Diplomatic Immunities (.pdf), which specifies that a waiver must always be express. The RSA also argued that ”if the UNSC intended to remove immunity, it could have clarified the situation by adopting another resolution.” This is indeed a suggestion I made in my previous post; not as sine qua non for finding that Al-Bashir’s immunity did not apply but simply as an aid for the ICC to uphold its position.

Despite Judge Tarfusser’s confidence in the DRC Decision’s ratio decidendi, PTC II decided to hold that no such waiver was necessary for the immunity of Al-Bashir to be considered irrelevant. The PTC rationale is simple: Sudan’s obligation to fully cooperate with the Court, which is underpinned by the Chapter VII power character of UNSC Resolution 1593, puts it in a position analogous to those of States Parties to the Rome Statute.

The gist of the reasoning is that the UNSC, when referring the situation in Darfur, submitted Sudan to the Rome Statute legal framework, which includes Article 27 (2) on the irrelevance of official capacity. In the particular situation in Darfur, the immunities to which Sudan’s officials are normally entitled under international law are not waived, they are simply irrelevant – as if it was a State party. As the PTC II put it, Sudan is subjected to “a sui generis regime” that extends ”the effect inter partes of the Statute, an international treaty” to a State that has not voluntarily accepted it. The caveat to this sui generis regime is that Sudan’s analogous position is only for the limited purpose of the situation in Darfur. In other words, the immunities from arrest and surrender of Sudan’s high ranking officials are relevant for crimes committed in, let’s say, Uganda.

This is slightly different from the DRC Decision in that while the PTC still heavily relies on the Chapter VII character of the obligation to cooperate fully, it is not dependent on the UNSC’s intent when adopting a referral to the ICC. The Chamber indeed insisted on this and emphasized:

‘it is immaterial whether the Security Council intended – or even anticipated – that, by virtue of article 27(2) of the Statute, Omar Al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest sought by the Court […]’ (par. 95)

This is a very important point since, as I will show below, the Court cannot count on the UNSC to support it in its prosecution of Al-Bashir.

Furthermore, the South Africa Decision affirms that States cannot rely on Article 98 (1) for justifying non-cooperation, as this provision is addressed to the Court solely. According to PTC II, the option States have if the Court makes a request contrary to Article 98 is to appeal the decision; not to ‘consult’ with the Court as RSA did. In contrast, the DRC Decision had called on the Congolese authorities to consult the Court when there is a problem related to article 98(1) of the Statute. PTC II acknowledged that the DRC Decision misled the RSA. While the OtP argued that the RSA abused the consultation process provided in article 97 to create a legal impediment to rely upon, the Chamber credited this ‘attempt’ to consult as one point in favour of not referring the matter to the ASP and/or UNSC.

  1. This will stay between us!

As anticipated, the PTC II found that it was unwarranted to refer the failure of RSA to arrest Al-Bashir. To justify its decision, the PTC II noted that the RSA’s domestic courts had already found that the State had breached its obligations. Thus, with the RSA domestic courts holding and its decision, PTC II considered that any possible ambiguity as to the law concerning the arrest and surrender of Al-Bashir had now been removed.

The remaining question was whether the ICC could really count on external actors to force compliance with its request to arrest and surrender Al-Bashir. The PTC noted that in all previous instances where a State’s failure to arrest Al-Bashir had been referred to the UNSC, the latter also failed to take any type of measure whatsoever against the non-cooperating State or Sudan. This is indeed the first acceptance from an ICC Chamber that the ‘last resort’ mechanism provided in Article 87(7) is ineffective, at least with regard to the arrest of Al-Bashir.

To tell the truth, a UNSC meeting on the failure of the RSA would have probably turned in a session where the ICC case law on immunity was trashed by some UNSC members. A month before the PTC delivered the South Africa Decision, Fatou Bensouda was admonishing the UNSC for the absence of concrete action in response to decisions of non-compliance referred to it by the Court. In response, the Russian representative affirmed once more that:

‘the obligation to cooperate, as set forth in resolution 1593 (2005), does not mean that the norms of international law governing the immunity of the Government officials of those States not party the Rome Statute can be repealed, and presuming the contrary is unacceptable.’

The AU position on the arrest of Al-Bashir is also well known known. African States sitting at the UNSC constantly remind it of their opposition to the arrest and surrender of Al-Bashir and reiterate their call for the use of an Article 16 deferral. For instance, Egypt declared:

‘we reject any action taken against any African country under the pretext that it has not complied with its obligations under the Rome Statute or on the basis of its non-cooperation pursuant to Security Council resolution 1593 (2005), because it did not arrest President Al-Bashir and hand him over to the ICC’

A referral of the RSA’s non-compliance to the UNSC could have turned to be a meeting where an Article 16 deferral would actually be granted. China, the AU and the Arab League, support a deferral of the proceedings against Al-Bashir. Even the United States have admitted that Sudan has taken meaningful positive steps with respect to the conflict in Darfur, and worked in cooperation with the US government to address regional conflicts. After all, let’s not forget that the RSA is the State that made a proposal for amending Article 16 of the Rome Statute, which would provide for the General Assembly to assume this power where the UNSC fails to respond to a request. Despite the repetitive requests for Article 16 Rome Statute to be triggered, the UNSC has not formally decided upon this matter yet.

On 29 March 2017, Al-Bashir travelled to Jordan, a State party to the Rome Statute, for a meeting of the Arab League and once again he was not arrested. There will be proceedings similar to the ones for RSA to take place at the ICC. The PTC will probably affirm its new case law on how Al-Bashir’s immunity does not apply. However, I very much doubt that the ICC will take the chance to refer Jordan to the UNSC, unless it is ready to accept the possibility of a deferral.

MH17 Downing Suspects to be Prosecuted Before Dutch Domestic Courts – An Obstacle or an Advantage for International Justice?

by Aaron Matta

[Dr. Aaron Matta is an expert in international law with working experience at International Courts. He also recently co-founded The Hague Council on Advancing International Justice, a network for and with practitioners, academics, and policymakers in the area of international justice. I would like to thank Dr. Philip Ambach and Anda Scarlat for their feedback on earlier drafts of this commentary.The views expressed here are of the authors alone]

After nearly three years since the downing of the Malaysia Airlines MH17 flight, the countries comprising the Joint Investigation Team (JIT) – namely Australia, Belgium, Malaysia, the Netherlands and Ukraine – announced on 5 July their decision to initiate domestic investigations and prosecutions in the Netherlands in relation to the incident. To facilitate these procedures, a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7. The treaty provides that those suspected of downing flight MH17 can be prosecuted in the Netherlands in respect of all 298 victims, which originate from 17 different countries. This means that all next of kin will have the same rights in the Dutch criminal proceedings regardless of their nationality.

These new developments are not surprising given that most of the victims were Dutch and the Netherlands has led the investigation and coordinated the international team of investigators thus far. This move also shows the determination of the JIT states to bring to justice those responsible, particularly after failed attempts to establish an ad hoc international MH17 Court had failed due to Russia’s veto in the United Nations Security Council. However, the recent decision to prosecute suspects in a Dutch domestic court raises challenges, particularly in view of the ongoing preliminary examination in Ukraine by the Prosecutor of the International Criminal Court (ICC). While international law provides several legal avenues for redress for this incident, in both criminal and civil proceedings, – which I extensively analyzed in an earlier blog post – the avenues analyzed here fall under the category of individual criminal responsibility.

So why can the Netherlands exercise its criminal jurisdiction in this case, if the incident occurred in Ukraine? In principle, Ukraine would retain the primary right to investigate and prosecute those responsible according to the legal principle of territorial jurisdiction – based on where the crime was committed. The Ukrainian leadership determined, however, that it would be very difficult to carry out the investigations and prosecutions due to the ongoing conflict in the Donbass region, where the MH17 incident took place. As a result, Ukraine triggered the ICC’s jurisdiction over crimes allegedly committed on its territory from 20 February 2014 onwards via two declarations under the ICC Statute, requesting the ICC Prosecutor to investigate the matter. Currently, following these requests, the ICC Prosecutor is undertaking a preliminary examination that could lead to the opening of a criminal investigation. Such investigation could potentially include the downing of the MH17 flight as an alleged war crime.

Nonetheless, the other JIT states, including the Netherlands, can also assert their domestic jurisdictions over this matter based on the legal principle of passive personality jurisdiction, due to the fact that their citizens were killed in this incident. In light of last week’s decision, the Dutch domestic criminal specialized courts will now be able to investigate and prosecute those responsible for the downing of MH17 on the basis of four main legal sources: first, as domestic crimes under the Dutch penal code, such as murder or manslaughter; second, as an international crime under the Dutch International Crimes Act of 2003; thirdly, as a crime on the basis of the 1971 Montreal Convention, which allows the domestic prosecution of any person committing unlawful acts against the safety of civil aviation; and finally, the bilateral judicial cooperation agreement recently signed with Ukraine.

However, the concurrent use of multiple criminal prosecution mechanisms, namely the Dutch domestic courts and the ICC, may cause difficulties. First, issues may arise under the basic principle of ‘ne bis in idem’, which states that no person can be tried twice for the same crime. Thus, if a Dutch court prosecutes an individual, this may prevent the ICC from prosecuting the same individual for the same crime. It is therefore essential for the JIT states to coordinate and cooperate with each other, and more importantly with the ICC, when it comes to gathering evidence, selection of suspects and conducting fair trials, to avoid duplication and wasting resources.

In addition, an investigation by the Dutch national authorities will most likely block any investigation by the ICC by virtue of the latter’s complementarity to national courts of its States Parties. According to this principle, states are primarily responsible for investigating and prosecuting international crimes. The ICC only intervenes if states parties to the Rome Statute of the ICC are unable or unwilling to prosecute individuals’ suspected/accused of the most serious crimes of concern to the international community. With this in mind, a division of labor between the different jurisdictions, and among the different actors involved, could be arranged. For example, the Netherlands could focus in prosecuting those most responsible for the MH17 incident, while the ICC concentrates its efforts and limited resources to investigating other crimes committed in the Ukrainian territory.

Other challenges that will be faced by all of the jurisdictions involved are, for example, meeting the high standards of proof required for establishing the suspects’ guilt beyond reasonable doubt. This includes notably the requirement to prove the alleged perpetrator’s ‘knowledge and intent’ to commit a war crime. Additionally, there will be several procedural obstacles when it comes to judicial cooperation and the sharing of crucial potential evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies. While some of this evidence can easily be shared with the JIT investigators, as well as with the Dutch and ICC prosecutors, in several instances much of this data cannot be shared due to some restrictions in the Ukrainian legal system. This is the case, for example, with evidence that may have been acquired or intercepted following special legal procedures into the downing of the MH17, such as investigations carried out in the interest of state security and the fight against terrorism.

The bilateral agreement between the Netherlands and Ukraine addresses some of these issues by reducing or simplifying some procedural hurdles. For example, the agreement tackles the issue of examination of Ukrainian defendants via video link or the transferring of enforcement of prison sentences that may be imposed, due to extradition restrictions in the Ukrainian legal system.

Finally, a major obstacle will prove to be obtaining custody of the potential suspects, particularly if they are Russian nationals and/or located on Russian territory. The Russian Federation will most likely not be willing to extradite potential Russian suspects, in spite of international pressure, in light of the current geopolitical tensions prevailing in the region. In this respect, trials in absentia (where the suspect is absent from the legal proceedings), which are provided for in the Dutch criminal code could prove to be a limited yet practical solution.

Regardless of these numerous challenges, the decision to initiate judicial proceedings in the Netherlands providing a solid avenue for legal redress for the incident should be welcomed. Such an initiative would further show that the JIT states are serious about seeking justice for the victims of this tragic incident and their relatives.

Reply by Gregory S. Gordon: On the General Part, the New Media and the Responsibility to Protect

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law, Associate Dean for Development and External Affairs and Director of the Research Postgraduates Programme at The Chinese University of Hong Kong Faculty of Law.  He was formerly a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Office of Special Investigations.]

I am grateful to Opinio Juris, especially organizers Chris Borgen and Jessica Dorsey, for providing this amazing platform to have a discussion about my new book Atrocity Speech Law: Foundation, Fragmentation, Fruition. And I would like to thank Professors Roger Clark, Mark Drumbl and David Simon for their astute and thought-provoking observations. Each took a different perspective regarding the book so I will respond to each of them ad seriatim.

Roger Clark is one of the great architects of international criminal law (ICL) and his contribution here masterfully situates my central arguments within the larger framework of ICL’s general part. Much is made in my book of incitement’s circumscribed application to the core offenses. But incitement is not ICL’s only marginalized inchoate modality – conspiracy has gotten the same treatment, as Roger indicates in his post. Animus toward that modality, however, arguably comes from different quarters. As Roger suggests, since Justice Jackson negotiated the contours of what would become the Nuremberg Charter, Americans have met with resistance when trying to weave conspiracy, a common count in American charging instruments, into ICL’s doctrinal warp and weft. And that’s not just in relation to the Pinkerton-type conspiracy to which Roger alludes (commonly associated with the controversial third category of joint criminal enterprise or “JCE III”– i.e., assigning criminal liability for offenses that were the “natural and foreseeable consequence” of implementing a common design).

I have very vivid memories of indictment-review meetings at the International Criminal Tribunal for Rwanda (ICTR), where lawyers from Civil Law jurisdictions would gnash their teeth and stoutly object to proposed garden-variety conspiracy counts. This could be the subject of another Symposium but I am still perplexed by this animosity; agreements to engage in group criminality – especially in the mass atrocity context – should be nipped in the bud and that is the object of inchoate conspiracy. And thus, to clear up one of Roger’s points, I am a fan of inchoate conspiracy! Of course, like any penal regulation, it can be abused. But when administered properly it can be a remarkably effective enforcement tool. And there is no doubt that my American-honed criminal law perspective colors my views on this topic!

So it is somewhat ironic that ill feeling toward that other inchoate crime, incitement, is primarily of American origin — owing to a rabid free speech ethos flowing from libertarian impulses. And it is here that I part company with many of my compatriots. As I point out in my book, incitement was nearly left out of the Genocide Convention due to American opposition out of concerns for liberty of expression. In fact, as Roger hints at in his post, it was the American position that there was no need to criminalize incitement separately, as it was already covered by conspiracy. I do not share that view. Provoking others to commit genocide is different from agreeing with them to do so. Conspiracy can be effected through non-verbal means. But incitement is always a verbal delict.

And that’s one of the key points in my book. It is true that we can technically find more general penal provisions to cover oral/written criminality in reference to mass atrocity. We could, for example, charge conspiracy rather than incitement or complicity rather than speech abetting (my proposed new modality). But that would be a mistake, I submit. We must recognize the critical, and unique, role played by verbal provocation in the atrocity context. And the operationalization of my proposed “Unified Liability Theory” does just that. While preserving incitement’s pride of place in reference to genocide, it would untether it from this traditional mooring and link it to the other core crimes. Just to be clear, in relation to Roger’s concern, that necessarily means adding incitement to crimes against humanity (CAH). And, more granularly, it should also entail incitement to the individual enumerated CAH acts. Thus, we should be thinking along the lines of incitement to CAH-extermination, for example.

And this is not such a radical idea. Roger references the little-noticed provision of US Army Field Manual 27-10, cited in my book, which criminalizes incitement to commit genocide, war crimes and crimes against humanity. And lest we forget, this was the approach taken by the International Law Commission in both the 1954 and 1996 versions of its Draft Code of Offences against the Peace and Security of Mankind. That is why I find baffling the ILC’s exclusion of incitement in the current version of its draft articles for a Convention on Crimes against Humanity.

Like all his work, Mark Drumbl’s analysis here is as brilliant lexically as it is legally! I can think of few other scholars whose work I peruse as much for the art of the prose as for the depth of the ideas. Perhaps it is appropriate that he comments on my book’s length. As it happens, during my darkest days of drafting drudgery, I would turn to the writing in works such as Atrocity, Punishment, and International Law to get inspired. And sure enough, after a few choice Drumblian paragraphs, I was back to my manuscript and the words would start to flow!

But let me state that I don’t believe my manuscript’s heft is for want of proper editing or any other indulgence. The criminal law governing the relationship between speech and atrocity had become such a tangled mess, that a proper genealogy, i.e., a big dig below several strata of botched norm-crafting, was necessary. Mark generously (I think) describes this law-formation process as “bricolage” in its English-language academic sense (i.e., something constructed or created from a diverse range of available things, with no teleological orientation).

But there may be a bit of irony in his use of this word. Per its ordinary Gallic meaning, bricolage refers to home-improvement “do it yourself” projects. And, in light of atrocity speech law’s herky-jerky doctrinal accretion, this is revelatory. For every stage of legislation – the Nuremberg Charter, the Genocide Convention, the ad hoc tribunal statutes, the Rome Statute – one discerns a “do it yourself” mentality (in a solipsistic sense) regarding the laws crafted to deal with discrete situations or problems. There appears to be little thought about what came before or what might follow — the bigger picture simply did not factor in. And deeper etymological analysis yields even more irony. When used pejoratively, bricolage in French means “patch-up job” or “shoddy workmanship.” And that perfectly describes the current atrocity speech law framework (and, to be fair, Mark certainly recognizes “concerns over coherence, predictability, and consistency.”)

Still, Mark intimates this process might have some value given the law’s natural, organic growth. I appreciate his point. But how much does organic growth matter if the ground soil is toxic to begin with? And regardless of soil quality, I highly doubt one could say the growth has been organic in any salutary, Aristotelean sense. Rather, the law has sprouted up pell-mell, like a dense tangle of weeds. And disentangling that mess, as well as explaining how properly to reconstitute it, takes patient parsing and ultimately results in a large Kindle data file. It was high time, I felt, to move past the myopic fragments of scholarship that had failed to offer holistic remedies.

Moreover, as Mark points out, that was not my only task. I also wished to suggest a to do list for future scholarship in this area. And, in this regard, I appreciate Mark’s emphasis on the key issue of sentencing. It simply would not do to adjust the liability misalignments while ignoring the punishment ones. As noted in my book, penalties to date have seemed as random as the contours of the substantive offense architecture that gave rise to them. Mark has generated amazing scholarship in this area and if he could turn his attention to this part of the atrocity speech law mess, we might get the insights needed to fix what is a highly undertheorized part of ICL.

Regarding atrocity and the new media, Mark has homed in on another critical aspect of future work in this area. I can understand his point about how “last century” the focus of my book seems to be. But it’s important to understand the context here. Atrocity Speech Law is mostly about the jurisprudence emanating from the Rwanda/Yugoslavia ad hoc tribunals and Nuremberg. When, to the chorus of RTLM rants, the Land of a Thousand Hills was being drenched in Tutsi blood, newspapers and radios were still the dominant media. When the Balkans convulsed in an orgy of post-Cold War ethnic cleansing, the likes of Slobodan Milošević and Radovan Karadžić were taking to the airwaves, not Twitter or Instagram. And so the jurisprudence to date reflects that.

Still, there are points in my monograph where the new media factor in. For instance, regarding incitement to genocide, I counsel considering media type as an evaluative factor to determine whether the “incitement” element of the offense has been satisfied. A more static medium, such as print, would compel a weaker inference of incitement. Social media, such as Twitter, would call for a polar-opposite inference. And in-between would be radio, a transmission vehicle less viral than social media but far more inherently incendiary than newspapers. Similarly, in respect of persecution, contextual evaluation of the speech in reference to a widespread or systematic attack against a civilian population demands consideration of the medium. Use of Instagram raises fewer freedom of expression concerns than, say, distribution of a pamphlet.

That said, Mark is on to something big. The issues raised by the use of new media must be grappled with more fully in the literature. When the next wave of state-sponsored mass violence leads to a new spate of inquests, questions of guilt in relation to internet service providers and social media platforms will no doubt vex future courts. We need to get out ahead of these issues and understand how to resolve them now. If we do, perhaps justice can be meted out far more efficiently and effectively than it was through this now-concluding ad hoc tribunal cycle. And, who knows, maybe good scholarship can contribute toward blunting atrocity rhetoric such that future trials will not even be necessary.

And that is a good segue to David Simon’s outstanding contribution. He focuses on how atrocity speech law coherence can help promote deterrence. But fixing the substantive law, he submits, will not be enough sans meaningful implementation. Given the outsize influence of the US, and the Security Council P5 generally, he questions whether the courts are the ideal enforcement fora in the first instance. But he brilliantly posits an alternative — “a network of non-governmental organizations paired with independent international bodies, perhaps set up at regional levels . . . that could be charged with identifying or responding to atrocity speech complaints.” And if not successful at that level, matters could be referred to higher bodies, such as upper-level regional organizations or perhaps even the ICC.

I was really excited when I read David’s post because, in certain important respects, it aligns well with another project I’m now working on concerning the philosophical foundations of international criminal law. In my new piece, tentatively titled Transnational Governmentality Networking: A Neo-Foucauldian Account of International Criminal Law, I rely on Michel Foucault’s later-stage theory of “governmentality” to help theorize the origins of international criminal law (ICL). Governmentality can roughly be defined as a non-disciplinary form of power arising from an amalgamation of institutions, procedures, analyses, and tactics that enable governance. I contend that ICL grew organically (there’s that word again!) from low-level, often informal, transnational networks enabled through the intercession of nongovernmental and international organizations. These networks ultimately facilitated the series of procedures, analyses and tactics that have reached critical mass in the formation of ICL.

Per this account, we can see David’s proposal as essentially suggesting a return to ICL roots (a bit of “reverse engineering” on his part as well!). But here the context is hate speech with a view toward atrocity prevention (via the emerging Responsibility to Protect norm). Obviously, on a personal level, I could not be more pleased to see two key branches of my scholarship brought together for such a meaningful purpose. And to have it coming from one of our finest genocide scholars is an incredible honor. Clearly, we need more of this sort of outside-the-box thinking if we ever realistically hope to redeem that “never again” pledge.