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Human Rights

Go Read Jens’s New Book!

by Kevin Jon Heller

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

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

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

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

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

The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An Intersubjective Treaty Power

by Duncan Hollis

Ian Henderson may be mad at me.  He asked for fewer posts on foreign relations.  But he also asked for more posts on treaties.  I have a new paper up that tackles both topics — An Intersubjective Treaty Power.  For those of you who are interested in such things, here’s the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

 

Guest Post: A Response to Kevin Jon Heller

by Nimrod Karin

[Nimrod Karin is a J.S.D. candidate at New York University School of Law. From 2006 to 2012 he served as a legal adviser to the Israel Defense Forces at the International Law Department of the Military Advocate General’s Corps’ HQ, and from 2012 to 2013 he was the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.]

Thanks so much for the kind words, Kevin, and even more so for the interesting push-back. I confess that a reader of an early draft of my post cautioned me against using the term “lawfare,” although for different reasons than those Kevin noted. Now I realize I should’ve given this comment more thought, but at the same time I’m very pleased to have helped generate the side-discussion over Kevin’s use of the term “bravery,” which is fascinating in itself.

In my original post I wrote that “lawfare” is a Palestinian prerogative, and therefore I clearly think that it’s both politically and legally legitimate, and so I can’t think that it has such negative connotations as Kevin apparently thinks I do. In fact, I did mean “lawfare” in the sense Kevin’s discussants (Dov, el roam, and Mendieta) are using it: “lawfare” as strategic utilization of the law, which for me isn’t negative but rather value-neutral, and this is why in the post I contrasted it with “the quest for justice” or “embracing the law.” Strategy is simply neither of those, just as it isn’t “good” or “bad” – Strategy is only successful or unsuccessful. And as my original post indicated, to me the only plausible strategic role for the ICC in the Israeli-Palestinian conflict is as “the (legal) straw that broke the camel’s (political) back”. Only time will tell whether this is in fact a successful strategy for the Palestinians.

As with most strategies, this latest Palestinian move carries risk, not only of failing but also of backfiring, exactly as Dov put it. And this is what Kevin apparently deems to be “bravery,” and that’s because (1) the ICC process is uncontrollable and (2) it is likely to implicate Hamas as well. At first blush I thought that in this context Kevin’s use of “bravery” stands for selfless, non-strategic risk-taking, on behalf of some higher or noble cause. This would mean Kevin does see the Palestinian ICC bid as primarily driven by “justice” or “rule of law” considerations, in which case Kevin and I substantively disagree. However now I think that Kevin’s using “bravery” in its dictionary form, i.e. doing something incredibly risky (for whatever reason), perhaps even unreasonably dangerous given the possible reward, and maybe even a “Samson Option” type of last resort (as melodramatic as it may sound). I think this meaning of “bravery” conforms to the value-neutral charchter of the “lawfare” definition, which means Kevin and I agree on the principle, and then we can ask whether the Palestinian move is strategically sound given the well-known thinness of the line separating bravery and stupidity.

The question therefore becomes just how risky the Palestinian ICC bid really is, and how risky the Palestinians thought it was when they made it, and we can only speculate with regard to both of these questions. My educated guess here is that the ICC bid isn’t that much of a risk for the Palestinians, or at least that it’s not perceived as such by the Palestinians, least of all by the relevant decision-makers, i.e. Abbas and his concentric power circles of PA-PLO-Fatah. I think that by now it’s more than obvious that for that side of the Palestinian internal conflict the best possible scenario is an international cop stepping in to take care of Hamas. If Hamas leaders ever get indicted by the ICC, Abbas would be finally free of the whole unity charade, and at absolutely no internal political cost for him, because Abbas wouldn’t face the dilemma of whether or not to extradite suspects or accept external investigation – Abbas has no de facto authority or control whatsoever over either the suspects or the actual “scene(s) of the crime(s)”. This means that the “Abbas side” is not only strategically superior in this respect, but a free-rider; and as I mention in the post, this might not have been so easy for the “Abbas side,” if the new ad hoc declaration had stuck to the July 1, 2002 date for retroactive temporal jurisdiction – because this might have put some PA/PLO/Fatah leaders in the path of the ICC due to their activities during the Second Intifada.

The way I see it, the only real backfire risk for the (relevant) Palestinians comes from Israel, where possibilities are endless when it comes to overreaction. I can’t tell of course if the Palestinians are simply dismissive of this risk, or if they’re fully aware and think the possible reward outweighs the risk (perhaps only in the cynical sense of cutting off the nose to spite the face), or if the Palestinians are realistic with respect to both risk and reward, but also truly desperate, as el roam seems to think. I guess that it’s a mix of all three.

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

by Kevin Jon Heller

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

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

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

Listen. Read. Learn.

Protest.

H/T: Bianca Dillon.

Guest Post: The Palestinian Accession to the Rome Statute and the Question of the Settlements

by Ido Rosenzweig

[Adv. Ido Rosenzweig is the chairman of ALMA –Association for the Promotion of International Humanitarian Law; Director of Research – Terror, Belligerency and Cyber at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa; and a PhD candidate at the Hebrew University of Jerusalem.]

Recently the Palestinians submitted (for the second time) a declaration accepting the jurisdiction of the International Criminal Court (ICC) in accordance with article 12(3) of the Rome Statute, thus providing jurisdiction to the International Criminal Court over their territory starting with June 13th, 2014. This was conducted alongside the Palestinian accession to the Rome Statute. That act was described as a political storm, a very aggressive and game changing move by the Palestinians who decided to throw their most important card into the game. That move gave rise to many different questions about its legality and the possible legal and political implications for Israel. In this short comment I address some of these issues and provide my own point of view on them.

What’s at stake here? Currently the ICC has jurisdiction over three types of crimes – war crimes, crimes against humanity, and genocide. It could be argued that with regard to most crime allegations Israel will have the option of raising the complementarity argument in accordance with article (article 17(1)(a) of the Rome Statute). Israel will most likely base her complementarity argument on the outcomes of the 2nd Turkel Report and the ongoing investigation process. However, even if the Israeli complementarity claim stands, there’s still one issue which complementarity won’t resolve, and that’s the settlements.

Where’s the problem? The wording of article 8(2)(b)(viii) goes:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;”

There’s a legitimate argument claiming that the settlements and more precisely, the government’s support of the settlements and the transfer of people from Israel to the West Bank, are strictly prohibited and amount to war crimes under the Rome Statute article (“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”). Moreover, since the Israeli High Court of Justice ruled that the Israeli policy regarding the settlements is not justiciable (for example see HCJ 4481/91 Bargil v. GoI), it seems that in this case Israel could be considered as “unwilling and unable” to exercise its jurisdiction with regard to the settlements (or some aspects of that policy).

Will the ICC investigate the Settlements? This question brings us to the other barriers of the ICC admissibility (besides complementarity). The first barrier is gravity (article 17(1)(d)) – the ICC will only deal with severe violations. The interpretations assigned to the population transfer prohibition vary in such way that some from a prohibition to forcibly deport local population into occupied territory, which probably doesn’t include the Israeli settlements in the West Bank, to other interpretations which could include the situation of the settlements.

Another barrier is the territorial jurisdiction of the Palestinians over the settlements. In their recent 12(3) declaration, the Palestinians provided jurisdiction to the court over “the Occupied Palestinian territory, including East Jerusalem“. However, it’s not legally clear over what territory the Palestinian are allowed to provide jurisdiction to the ICC. This is due to the fact that there’s no clear decision or ruling about what constitutes the territory of the Palestinians. In fact, the November 29th, 2012 General Assembly’s resolution 67/19 clearly stated that the issues of the Palestine refugees, Jerusalem, settlements, borders, security and water need to be resolved via negotiations. This can lead to three very important conclusions – (a) It is unclear if the territory where the settlements are located is under Palestinian jurisdiction and therefore if such jurisdiction can be granted to the ICC; and (b) since the very same resolution provided the Palestinians with the upgraded status also left the resolution of borders and settlements to negotiations, it is unclear if the ICC would be allowed to resolve such sensitive political questions through criminal procedures; (c) finally, it can also be argued that by leaving the settlements issue to negotiations, the international community doesn’t regard the transfer of population as a severe act which meets the gravity threshold that was mentioned above.

What’s next? This is where things get even more complicated. Since the questions of the borders and territory are important, they need to be resolved somehow. In my view there are (at least) six potential and interesting ways for these questions to be resolved:

  • Another General Assembly resolution clarifying the situation and thus changing the requirement for negotiations in order to resolve those issues. I think that if the Palestinians were able to achieve that in the first place they would have done so. Therefore it seems that there won’t be a majority in the General Assembly for such a resolution.
  • Security Council resolution on this issue. This is the most farfetched option, as it was the refusal of the Security Council to adopt a relevant resolution that led to the Palestinian Accession to begin with.
  • Decision of the ICC with regard to its jurisdiction. While this could be the main road in this context – letting the ICC prosecutor and after that the Judges, decide on the Court’s jurisdiction, it’s a well known fact that the ICC doesn’t operate rapidly and I believe that the Palestinians won’t be willing to sit down and wait until the ICC issues a decision on that topic.
  • Advisory opinion of the International Court of Justice (ICJ) is probably the Palestinian’s next move. While it’s not a “win-win” situation for the Palestinians as the ICJ might decide against their claim for jurisdiction over the settlements’ territory, it is definitely a “win-no lose” situation where they can gain with a decision in their favor or remain in the same situation as they are now if the ICJ rules against their claim for jurisdiction.
  • The Human Rights Committee, the professional body charged with the implementation and interpretation of the International Covenant on Civil and Political Rights which the Palestinians joined in their first round of ratification of treaties. When the Palestinians come before the committee, one of the decisions the committee will have to make will relate to the treaty’s territorial applicability, and to that end, the committee will have to decide whether Palestinian territory includes the settlements. I doubt that the professional committee will desire to deal with such a hot political and diplomat potato, and anyway, such a review is not scheduled for the upcoming year.
  • Lastly, as was suggested here by my good friend and colleague, Sigall Horovitz, Israel has also the option of joining to the Rome Statute and submitting a declaration under article 124 with an attempt to gain a delay of seven years with regard to the ICC’s jurisdiction over any allegation of war crimes committed by Israel.

It seems that the already complicated Israeli-Palestinian situation just got more complicated, and while it’s unclear what the outcome will be, I’m just not sure that outcome of the Palestinian move was as aggressive as it seemed at first glance. The question of the settlements is obviously broader than the discussion presented above, and in this short comment I presented my thoughts on one specific aspect related to them following the recent developments.

Why the Palestinian Authority Should Avoid Arafat’s Death

by Kevin Jon Heller

So this is a well-intentioned but problematic idea:

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

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

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

[snip]

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

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

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

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

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

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

by Kevin Jon Heller

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

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

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

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

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

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

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

by Kevin Jon Heller

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

thefaceofamanwhoknowswhathestalkingabout

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

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

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

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

Guest Post: 2014 at The African Court on Human and Peoples Rights–a Year in Review

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.]

Many readers will be familiar with the African Court on Human and Peoples Rights. For those who are not the Court was established by the African Union to hear cases relating to alleged violations of the African Charter on Human and Peoples Rights (Charter) and other international human rights instruments. The Court is based is in Arusha, Tanzania and is separate to the African Commission on Human and Peoples Rights. What follows is a summary of the Court’s activity in 2014.

March: the Court’s 32nd Ordinary Session

At its 32nd Ordinary Session, the Court conducted the public hearing in Konate v. Burkina Faso. The Applicant, working as editor of the weekly newspaper L’Ouraganin, published two articles which lead to his convicted for defamation, public insult and insulting a magistrate. He was sentenced to twelve months imprisonment and handed large fines. The Applicant argued that his conviction and punishment contravened his right to freedom of expression as protected under Article 9 of the Charter and Article 19 of the International Covenant on Civil and Political Rights.

The Court also rendered three judgments. The first, Zongo and others v. Burkina Faso, related to the alleged assassination of Norbert Zongo an investigative journalist and Director of the weekly paper l’Indépendent and three colleagues in December 1998. The Applicant argued that following the alleged assassination the local authorities had failed to mount a proper investigation and failed to act with due diligence in seeking, trying and judging those involved in the death of Zongo and his companions. In only the second case to be decided on its merits, the Court found that Burkina Faso had indeed failed to take measures to ensure the Applicants right to be heard by a competent national court, therefore violating articles 1, 7, 9(2) of the Charter and Article 66 of the ECOWAS Treaty. Reparations are to be decided after further submissions from the parties.

The second and third cases, Omary and others v. Tanzania involving an application by former East African Commission employees who had not received promised reparations, pension and severance benefits when the then East African Community was disbanded in 1984, and Chacha v. Tanzania, concerning the Applicant’s alleged unlawful arrest, detention, charging and imprisonment contrary to Tanzanian laws, were both declared inadmissible due to the Applicant’s failure to exhaust local remedies.

The Court also considered its first application for interpretation and review of a previous Judgment. In June 2013 the Court had found the case of Mkandawire v. Malawi inadmissible due to the Applicant’s failure to exhaust local remedies. The Applicant made an application to the Court for review and interpretation of the Judgement. The Court ruled that the application for interpretation could not be entertained because “interpretation” as found in the Protocol and rules of the Court can only be sought for the purposes of executing a judgement. Since the case was dismissed due to non-exhaustion of local remedies there was no judgement to interpret. As to the application to review, the Court found the application inaccurately cited key paragraphs of its earlier judgement which were the subject of the review application. In addition evidence provided by the Applicant which he argued was new was known to him at the time the Court handed down its judgement and was therefore neither new or evidence.

June: movement toward the African Court of Justice and Human Rights

The Court, or at least the future guise of the Court, came into the spotlight in June after the African Union met in Malabo, Equatorial Guinea where it adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. (Incidentally, Equatorial Guinea has not signed the Protocol establishing the existing Court).

This Protocol has been the subject of much comment and debate, in particular for its amendment to Article 46A bis of the Protocol on the Statute of the Court which imparts immunity against criminal charges for acting heads of state or government and other senior state officials. We also learned a little more of the new court’s ambitious proposed structure consisting of a “general” chamber handling trade issues and conflict between states, a “human rights chamber” handling work similar to the current Court and “criminal chamber”. For more comment on the immunity amendment see Paul Bradfield’s piece here, and Mark Kersten’s piece here. A press conference by Legal Counsel for the African Union Vincent Nmehielle on the new court, including the issue of immunity, can be seen here. Please note that the press conference does not start until about 6 minutes in, so best to skip forward.

June: Mtikila ruling on reparations

Also in June, the Court rendered its first ever ruling on reparations in Mtikila v. Tanzania. The case centered on Tanzanian laws that require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, effectively barring independent candidates. In June 2013 the Court delivered its judgment, unanimously finding Tanzania’s ban on independent candidates had violated the Applicant’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated the Applicant’s Article 2 and 3 Charter rights. The judgment can be read here. My summary and analysis of the case can be seen here.

The issue of reparations was postponed in order that both parties could make additional submissions. In its ruling the Court found there exists a fundamental principle of international law that where a violation of an “international obligation” causes harm, there entails an obligation to provide adequate reparation which the Court should follow and is reflected in Article 27(1) of the Court’s Protocol. The Court found that applying this principle, pecuniary and non-pecuniary damages and legal expenses were capable of being awarded by the Court, but that the Applicant had failed to provide evidence of a link between the damages and expenses claimed and the claim itself.

In addition, the Court also examined Tanzania’a compliance with the June 2013 judgment noting that in Tanzania’s reply to damages it continued to maintain that the judgment was wrong, since the law in Tanzania prohibits independent candidates from running for election. The Court expressed its “concern” at this line of argument which was compounded by Tanzania’s failure to report to the Court on the measures it is taking to comply with the Judgment. Consequently, it ordered that within six months Tanzania should: (i) publish the official English translation translated into Kiswahili at Tanzania’s expense and publish in both English and Kiswahili once in the official gazette and once in a national newspaper; and (ii) publish the Judgment it its entirety in English on an official website and remain available for one year. The Court ordered that nine months from the ruling Tanzania should submit to the Court a report ion the above measures. (more…)

New Essay: The Use and Abuse of Analogy in IHL

by Kevin Jon Heller

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS:  I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.