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Human Rights

Apple Rejects Game Where You Play a Palestinian

by Kevin Jon Heller

palestinegameThe game in question — from which the screenshot is taken — is entitled Liyla and the Shadows of War. Here is how the gaming magazine Hardcore Gamer describes it:

Liyla and the Shadows of War is a short, dark game about exactly what the title implies. You play as a father running home through a war zone attempting to collect his family and get them to safety as the bombs fall and the drone strikes mow down anything that moves.

[snip]

At the start I navigated a few platforming sections, figured out how to avoid gunfire, made a couple of story choices, and even did a simple auto-run section where I had to control the jumping of two characters simultaneously. Of the 30-ish minutes of using the app, this was about 28 or so. The final two  minutes (and it might have been less, I wasn’t running a timer) were spent reading.

A game, right? Not if you’re Apple, apparently:

CiwVR6mUUAA4j4pThe gaming community is mocking Apple’s decision, and rightfully so. As Hardcore Gamer points out, “Liyla and the Shadow of War is a game. Having a serious message about a real-world conflict doesn’t make it any less so, and it’s insulting not just to the developers but to gaming in general to say otherwise.” Indeed, there is no way Apple actually believes that Liyla and the Shadow of War isn’t a game; it simply doesn’t want to host a game developed by a Palestinian that encourages thinking critically about Israel’s violence toward Palestinians. But rejecting the game on political grounds would itself be seen as political — correctly — so Apple comes up with a ridiculous pretext for rejecting it and hopes nobody notices.

I know what you’re thinking: doesn’t Apple has the right to avoid “political” games? Isn’t it smart business to stay out of the Israel/Palestine conflict?

Fair question. And in response I give you this:

screen568x568 (1)

Meet Israeli Heroes, an Angry Birds rip-off in which — according to Boing Boing — “you hurl cartoon missiles at vaguely Arabic-looking adversaries.” Currently available for free on iTunes.

So much for Apple’s political neutrality.

Liyla and the Shadow of War is still available for Android on Google Play. I haven’t tried it yet, but it has a 4.9 average from 333 reviews, so it’s obviously good. Check it out. Maybe you’ll have fun playing and learn something about life in Palestine in the process.

Which is precisely what Apple doesn’t want you to do.

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

The Ruto Trial Chamber Invents the Mistrial Without Prejudice

by Kevin Jon Heller

As readers no doubt know, on Tuesday the ICC’s Trial Chamber declared a “mistrial” in the case against William Ruto and Joshua Arap Sang. The decision likely puts an end to the fiasco of the Ocampo Six — now the “Ocampo Zero,” to borrow Mark Kersten’s nicely-turned expression — although the Trial Chamber dismissed the charges “without prejudice,” leaving the door open for the OTP to prosecute Ruto and Sang again if its evidence ever becomes stronger.

The decision is obviously terrible for the OTP. And it is difficult not to feel sympathy for its plight: although I fully agree with the majority that no reasonable finder of fact could convict Ruto and Sang on the evidence presented during the OTP’s case-in-chief, Kenya has consistently refused to cooperate with the Court (despite its treaty obligations under the Rome Statute) and the allegations that pro-Ruto and Sang forces intimidated (and perhaps even killed) witnesses seem well-founded. In the absence of those serious limitations on its ability to investigate, it is certainly possible the OTP might have been able to establish a case to answer.

In this (extremely long) post, however, I want to address a different issue: the majority’s decision to declare a mistrial and dismiss the charges against Ruto and Sang without prejudice, instead of entering a judgment of acquittal. That is very much a distinction with a difference: had the majority acquitted Ruto and Sang, the OTP could not prosecute them again for the same conduct, because Art. 20 of the Rome Statute — the ne bis in idem provision — specifically provides that “no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.”

My question is this: where did the majority get the idea it could declare a mistrial instead of granting the defence’s no-case-to-answer motion? Unfortunately, Neither Judge Fremr nor Judge Eboe-Osuji provide a convincing answer to that question. On the contrary, they have simply invented the possibility of a mistrial in order to leave open the possibility of Ruto and Sang being re-prosecuted…

The Next UN Secretary General – Public Meetings Starting Soon

by Kristen Boon

Importantly, and for the first time, meetings will soon be held with all candidates for the post of UN Secretary General, enabling them to present their candidatures.  Member States will also have the opportunity to ask questions.   Mogen Lykketoft, president of the GA, has publicized his plans for these meetings in letters here and here.

A current list of candidates (and their accompanying documents) for the position is available here, and includes the recently announced Helen Clark of New Zealand, Antonio Guterres of Portugal, Danilo Turk of Slovenia, and Vesna Pusic of Croatia.  The informal dialogues noted below are scheduled for April 12-14, and will be webcast on UN TV:   http://webtv.un.org.

Tuesday, 12 April 2016 [Trusteeship Council]

Wednesday, 13 April 2016 [Trusteeship Council]

Thursday, 14 April 2016 [Trusteeship Council]

9 AM – 11 AM

Dr. Igor Lukšić Dr. Danilo Türk

11 AM – 1 PM

Ms. Irina Bokova Dr. Vesna Pusić  Helen Clark

3 PM – 5 PM

Mr. António Guterres Ms. Natalia Gherman Dr. Srgjan Kerim

Other organizations are also holding meetings with the candidates, such as the International Peace Institute (IPI) whose conversation with Dr. Pusic was broadcast yesterday and can be viewed here.

Despite this new process, a recent New York Times article suggests this move towards more dialogue will have little substantive effect:

In the end, the selection will be made by the five permanent members of the Security Council, who will send that person’s name to the 193-member General Assembly for approval. As in the past, the deliberations are likely to be shaped more by diplomatic jockeying between Moscow and Washington than what the candidates say or do in public hearings that start next week. The Russian ambassador, Vitaly I. Churkin, made this clear to diplomats who asked him about the new pressure for transparency.

Given recent negative press about the relevance of the Organization, this possibility makes it all the more important for Member States and civil society to strategically engage the candidates, and raise agenda setting items early.   For background on the push for a new and more transparent selection process, see my post here.

Some of the issues that are being raised with the candidates include qualities of a new SG (with gender being a frequently discussed topic in the current campaign);  how the UN should respond to new threats to peace and security including asymmetrical warfare, whether we need more peacekeepers, and how their quality (training) can be maintained and improved.

Another frequent question is how the UN should respond to claims against the Organization, including the Haiti Cholera case and recent allegations of sexual abuse by UN peacekeepers.   To date, Danilo Turk has been most concise and convincing on this point, stating in the Times article noted above that he hoped the organization would “provide the victims with a fair process and an effective remedy.”   Dr. Pusic’s response in the IPI interview yesterday was disappointing:  she suggested more study was needed, and quickly moved on.

What questions would you like to pose to Secretary General Candidates?

Cruz Advisor: Joseph McCarthy Was “Spot On”

by Kevin Jon Heller

I’ve been slowly working on a post that points out Ted “Carpet Bombing” Cruz is no less scary than Donald “Torture Everyone” Trump when it comes to foreign-policy. (Schadenfreude isn’t a strong enough word for how much I am enjoying the implosion of the Republican party under the combined weight of their insanity.) To tide you over, I will simply offer this doozy of a quote from one of Cruz’s national-security advisors, Clare Lopez, about the Red Scare:

We can go all the way back, of course, to the time of the Cold War and back to the 1920s, ‘30s, ‘40s when communists, you know, the KGB, infiltrated our government at the very highest levels. And then, like now, we were unprepared and in large measure unaware of what was going on, at least until the House Un-American Activities got rolling in the 1950s with Sen. Joseph McCarthy, who absolutely was spot-on in just about everything he said about the levels of infiltration.

Lopez works for another Cruz advisor, Frank Gaffney — a racist and Islamophobic conspiracy theorist who believes Grover “Drown Government and Poor People in the Bathtub” Norquist is an agent of the Muslim Brotherhood.

What’s the old adage about how a person is known by the company he keeps?

Why Bemba’s Conviction Was Not a “Very Good Day” for the OTP (Updated)

by Kevin Jon Heller

As readers probably know by now, the ICC convicted Jean-Pierre Bemba yesterday of various war crimes and crimes against humanity, including rape as both a war crime and crime against humanity. Commentators are praising the conviction as landmark with regard to sexual violence — against both women and men. Here, for example, is Niamh Hayes:

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

I agree with Niamh that the decision is a landmark in terms of sexual violence — but I would take strong issue with the idea that Bemba’s conviction represents a “very good day” for the OTP. On the contrary, the Trial Chamber’s judgment illustrates that the OTP continues to have problems developing its cases without the judges’ help. As Niamh notes, Bemba is the first ICC defendant convicted on the basis of superior responsibility. But she fails to point out a critical fact about the trial: the OTP alleged that Bemba was responsible for the various war crimes and crimes against humanity as a superior only because the Pre-Trial Chamber told it to do so. The OTP’s original theory of the case was that Bemba was responsible for those crimes solely as an indirect co-perpetrator. The PTC, however, disagreed: because the evidence the OTP presented at the confirmation hearing indicated that Bemba was most likely responsible for the crimes as a superior, not as an indirect co-perpetrator, the PTC adjourned the hearing and requested (read: instructed) the OTP to amend the charges to include superior responsibility. The OTP did so — but it continued to insist that Bemba was primarily responsible for the charges as an indirect co-perpetrator. Here is the relevant paragraph from its Amended Document Containing the Charges:

57. Primarily, BEMBA is individually criminally responsible pursuant to Article 25(3)(a) of the Rome Statute, for the crimes against humanity and war crimes referred to in Articles 7 and 8 of the Statute, as described in this Amended DCC, which he committed jointly with Patassé through MLC troops. Alternatively 1 , BEMBA is criminally responsible by virtue of his superior-subordinate relationship with MLC troops pursuant to Article 28 (a), or in the alternative Article 28(b), of the Statute, for crimes against humanity and war crimes, as described in this Amended DCC and enumerated in Counts 1 to 8, which were committed by MLC troops under his effective command, or authority, and control as a result of his failure to exercise control properly over these forces.

The OTP should be grateful to the PTC for its “request,” because the PTC ultimately refused to confirm Bemba’s potential responsibility as an indirect co-perpetrator. Had the PTC not intervened, the case would not even have made it past the confirmation stage.

So, to summarise: The OTP had a theory of the case. The PTC told it to rethink that theory. The OTP did so — reluctantly. The PTC rejected the OTP’s preferred theory. And the TC ultimately convicted Bemba on the theory first proposed by the PTC.

Bemba’s conviction clearly represents a very good day in the struggle against sexual violence. But it hardly represents  a very good day for the OTP. On the contrary, it actually represents a rather stunning rebuke to the OTP’s ability to develop its cases without the judges’ help.

NOTE: I have updated the post in light of an email from Alex Whiting pointing out that the PTC refused to confirm indirect co-perpetration. My thanks to him for the correction.

AJIL Unbound Symposium on Third World Approaches to International Law

by Kevin Jon Heller

AJIL Unbound has just published a fantastic symposium entitled “TWAIL Perspectives on ICL, IHL, and Intervention.” The symposium includes an introduction by James Gathii (Loyola-Chicago) and essays by Asad Kiyani (Western), Parvathi Menon (Max Planck), Ntina Tzouvala (Durham), and Corri Zoli (Syracuse). All of the essays are excellent and worth a read, but I want to call special attention to Ntina’s essay, which is entitled “TWAIL and the ‘Unwilling or Unable’ Doctrine: Continuities and Ruptures.” Here is a snippet that reflects her central thesis:

The similarities between this practice and the prominent role of nineteenth-century international legal scholars in the construction of the “civilizing” discourse of the time are striking, even if “[s]ubsequent generations of international lawyers have strenuously attempted to distance the discipline from that period.” Imperial aspirations tied to such arguments also form a “red thread” that connect “the standard of civilization” with the “unwilling or unable” doctrine. The unequal international legal structure promoted by these arguments is intimately linked to an unequal political structure, characterized by the dominance of the Global North over the Global South. More specifically, states of the Global North are enabled to use force against the sovereignty and—importantly—the life and security of the citizens of states of the Global South in pursuing the former’s “war on terror” and the political and economic agendas accompanying it. Moreover, pressure is exerted upon states of the Global South to transform themselves and adopt policies appealing to powerful states, if they want to avoid being branded “unwilling or unable.” A strong parallel can be detected between this transformative process and the pressure exerted upon peripheral states during the nineteenth century to introduce reforms that would render them “civilized” and, hence, equal to Western states.

Ntina makes a number of points in the essay that I’ve tried to make over the years — but she does so far better than I ever have or could. For anyone interested in the “unwilling or unable” doctrine, her essay is a must read.

Letter Criticising the UK’s Snooper’s Charter

by Kevin Jon Heller

Along with more than 200 other lawyers and academics, I have signed an open letter to the UK government criticising the UK’s investigatory powers bill — aka the “Snooper’s Charter.” Here is the text of the letter:

The UK’s investigatory powers bill receives its second reading on Tuesday. At present the draft law fails to meet international standards for surveillance powers. It requires significant revisions to do so.

First, a law that gives public authorities generalised access to electronic communications contents compromises the essence of the fundamental right to privacy and may be illegal. The investigatory powers bill does this with its “bulk interception warrants” and “bulk equipment interference warrants”.

Second, international standards require that interception authorisations identify a specific target – a person or premises – for surveillance. The investigatory powers bill also fails this standard because it allows “targeted interception warrants” to apply to groups or persons, organisations, or premises.

Third, those who authorise interceptions should be able to verify a “reasonable suspicion” on the basis of a factual case. The investigatory powers bill does not mention “reasonable suspicion” – or even suspects – and there is no need to demonstrate criminal involvement or a threat to national security.

These are international standards found in judgments of the European court of justice and the European court of human rights, and in the recent opinion of the UN special rapporteur for the right to privacy. At present the bill fails to meet these standards – the law is unfit for purpose.

If the law is not fit for purpose, unnecessary and expensive litigation will follow, and further reform will be required. We urge members of the Commons and the Lords to ensure that the future investigatory powers legislation meets these international standards. Such a law could lead the world.

Here is a Guardian article on the letter. It’s pathetic that Labour intends to abstain on the bill, instead of opposing it. To their credit, both the Lib Dems and the SNP will oppose the bill.

Article 87(5) of the Rome Statute — Bizarre and Possibly Counterproductive

by Kevin Jon Heller

In a recent post, I noted my puzzlement at Russia’s recent announcement that it will not cooperate with the ICC’s investigation in Georgia. Noting that “Russia has very little to fear” from the investigation, I asked why it would not “milk a little goodwill by at least pretending to cooperate with the ICC” — especially as Russia could simply stop cooperating with the ICC if the OTP ever found evidence that incriminated it.

My post elicited the following response from Patricia Jimenez Kwast on her personal blog:

This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that ‘pretending to cooperate’ or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.

To be perfectly honest, I had never paid any attention to Art. 87(5) until I read Kwast’s post. Here is what it says:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

In any case, I doubt Russia is trembling in its boots at the thought of a non-cooperation finding. The Security Council did not refer the situation in Georgia, so the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties. And the Assembly of States Parties has no authority over Russia — because it’s a non-party State…

I’m more than a little baffled by Art. 87(5). Comments from readers would be most appreciated.

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

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

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

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

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

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

[snip]

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

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

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

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

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

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

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

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

Discussing Gbagbo on BBC World News

by Kevin Jon Heller

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

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