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Human Rights

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 Still, he noted that the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction, and added that the Palestinian Authority had conveyed to Israel an official message to that effect, through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.

H-Diplo Roundtable on David Bosco’s “Rough Justice”

by Kevin Jon Heller

H-Diplo, part of H-Net, recently hosted a virtual roundtable on David Bosco’s excellent book Rough Justice:The International Criminal Court in a World of Power Politics, published by Oxford last year. Erik Vroeten introduced the roundtable, and Sam Moyn, David Kaye, and I submitted reviews. David then wrote a response. Here is a snippet from Erik’s introduction:

It is my pleasure to introduce the distinguished and diverse set of reviewers of this timely and important book. Samuel Moyn embeds Bosco’s book in a longer history of the tensions between power and justice. If international justice is not impartial, then it loses its legitimacy. Yet, powerful states have always had incentives to interfere with individual exercises of justice and they rarely fail to act on these temptations.  The ICC, despite all its normative appeal, has been unable to break this pattern.

David Kaye lauds Bosco for the clarity of his exposition and for treating the intersection between idealism and power politics “with great modesty and insight, and without a hint of dogma.” Yet, Kaye also finds that in evaluating the ICC we must look beyond power politics. Questions about the way the ICC has had more subtle influences on how national, subnational, and international actors conceive of justice-related issues are not answered in this book. Looking at such questions may lead to a different and more nuanced perspective about the role of the ICC in international affairs.

Kevin Jon Heller praises Bosco for writing “[..] a history of a complex international organization that is eminently readable yet does not sacrifice analytic rigor.” He especially appreciates the “deceptively simple theoretical structure,” which characterizes the relationship between the Court and powerful states. Yet, Heller also has some pointed criticisms. Most notably, he believes that Bosco underplays the failings of Luis Moreno-Ocampo as the Chief Prosecutor of the ICC. He also takes issue with some historical assessments. At times, Heller argues, Bosco understates the agency of the Court. For example, Moreno-Ocampo was under no obligation to accept the Security Council’s terms on Libya. At other times, Bosco oversells what the Office of the Prosecutor (OTP) might have done. It is really not up to the OTP to lobby in pursuit of referrals against non-member states.

I share the reviewers’ praise for the analytical clarity of the book. From the perspective of my discipline, international relations, I hope it will contribute to more subtle understandings of how power affects the workings of international institutions. But, as the reviews show, there are also important lessons for historians and lawyers. As in his previous volume,), David Bosco has given us a book that has the distinguished qualities of being clear, interesting, and persuasive.

The roundtable is well worth your time. You can download a PDF of all the contributions here.

Guest Post: Accountability Impact or Impasse? The Curious Case of the North Korean Inquiry

by Catherine Harwood

[Catherine Harwood is a PhD candidate at the Grotius Centre for International Legal Studies at Leiden University]

After over a decade of reports alerting the UN Human Rights Council (HRC) to serious human rights violations in the Democratic People’s Republic of Korea (North Korea), in March 2013 the Council decided to establish an international commission of inquiry to investigate those allegations and to ensure “full accountability, in particular where these violations may amount to crimes against humanity”. Denied access to North Korea, the Commission travelled to several countries to hear from victims and witnesses. In a strong commitment to transparency, the Commission held public hearings and made many testimonies and exhibits available online. A year later, its report recorded a litany of serious human right abuses. The Commission found reasonable grounds to believe that North Korea had committed serious human rights violations and that many senior officials had committed crimes against humanity [para. 1225]. It issued a host of recommendations, including that the Security Council refer North Korea, a non-state party to the Rome Statute, to the International Criminal Court (ICC).

Although the Commission dissolved upon the delivery of its report, its accountability recommendations reverberated beyond the HRC and have remained on the intergovernmental diplomatic agenda. This contribution discusses some interesting features of the Commission’s findings and tracks the consequences of its report – some of which have been curious and unexpected – before offering some thoughts as to the impact of the inquiry in relation to the goal of ensuring accountability.

(more…)

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.

 

Welcome to the Blogosphere, Points of Order!

by Kevin Jon Heller

The new blog, which will focus on “multilateralism, international organizations, and world order” — no small task there! — includes Friends-of-OJ David Bosco and David Kaye, as well as my SOAS colleague Leslie Vinjamuri. Here is the complete contributor list:

  • David Bosco is an assistant professor at American University’s School of International Service and a contributing editor at Foreign Policy magazine.
  • Martin Edwards is associate professor at Seton Hall University and director of the Center for United Nations and Global Governance Studies.
  • David Kaye is clinical professor of law at the School of Law, University of California-Irvine. He was appointed special rapporteur for the promotion and protection of the right to freedom of opinion and expression by the UN Human Rights Council.
  • Cymie Payne is assistant professor at Rutgers University, focusing on international and environmental law.
  • Ted Piccone is a senior fellow with the Project on International Order and Strategy and Latin America Initiative in the Foreign Policy Program at the Brookings Institution.
  • Oliver Stuenkel is assistant professor at the Getúlio Vargas Foundation (FGV) in São Paulo, where he coordinates the São Paulo branch of the School of History and Social Science (CPDOC) and the executive program in International Relations
  • Leslie Vinjamuri is co-director of the Centre for the International Politics of Conflict, Rights and Justice and associate professor at the School of Oriental and African Studies (SOAS), University of London.  She is an Associate Fellow in the US Programme at Chatham House, the Royal Institute for International Affairs.

Recent posts address climate finance, Brasilian foreign policy, the IMF, and the ICC’s preliminary examination in Afghanistan. All of the writing is very high quality, so make sure to check Points of Order out!

Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?

by Kevin Jon Heller

Almost three years ago to the day, I critiqued an article by Ashley Deeks that argued the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are “unwilling or unable” to prevent non-state actors from using their territory to launch armed attacks. As I noted in my post, Deeks herself admitted that she had “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom).”

When Deeks wrote her article, ISIS did not yet exist — and the US and other states had not started attacking ISIS in Syria. It is not surprising, therefore, that Deeks is now relying on the international response to ISIS to argue, in the words of a new post at Lawfare, that “the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine.”

There is no question that the US believes the “unwilling or unable” test is consistent with Art. 51. As Jens noted a few months ago, the US officially invoked the test with regard to ISIS and the Khorasan Group in a letter to the Security Council. Moreover, the UK seems to agree with the US: according to Deeks, the UK submitted a similar Art. 51 letter to the Security Council, stating that it supports international efforts to defend Iraq “by striking ISIL sites and military strongholds in Syria” — a position that, in her view,”implicitly adopts the ‘unwilling or unable’ test.”

Deeks does not provide a link to the UK letter, but I have little doubt she is characterizing the UK’s position accurately. I have significant issues, though, with the rest of her post, which argues that three other factors related to the international response to ISIS support the “unwilling or unable” test. Let’s go in order. Here is Deeks’ first argument:

[S]tates such as Jordan, Bahrain, Qatar, and the UAE, which also have undertaken airstrikes in Syria, presumably are relying on the same legal theory as the United States and UK.  (That said, those states have not proffered clear statements about their legal theories.)

There are two problems with this claim. To begin with, even if the four states are relying on “unwilling or unable” to justify their attacks on ISIS in Syria, they have not said so publicly — which means that their actions cannot qualify as opinio juris in support of the test. The publicity requirement is Customary Law 101.

More importantly, though, and pace Deeks, it is actually exceptionally unlikely that these states support the “unwilling or unable” test. All four are members of the Non-Aligned Movement (NAM), which has consistently rejected the test, most notably in response to Turkey’s cross-border attacks on the PKK in Iraq (see Ruys at p. 431):

We strongly condemn the repeated actions of Turkish armed forces violating the territorial integrity of Iraq under the pretext of fighting guerrilla elements hiding inside Iraqi territory. … We also reject the so-called ‘hot pursuit’ measures adopted by Turkey to justify such actions that are abhorrent to international law and to the norms of practice amongst States.

To be sure, Jordan, Bahrain, Qatar, and the UAE have not rejected the “unwilling or unable” test since 9/11 — the statement by NAM above was made in 2000. But there is little reason to believe that their understanding of Art. 51 has fundamentally changed over the past decade. On the contrary, all four are also members of the Arab League, and in 2006 the Arab League formally rejected the “unwilling or unable” test in the context of Israel’s attacks on Hezbollah in Lebanon (see Ruys at p. 453).

Here is Deeks’ second argument:

Iraq vocally has supported strikes within Syria.

This is not surprising, given that ISIS is using Syria as a base for attacks on Iraq. But does Iraq’s support for airstrikes on ISIS in Syria count as opinio juris in favour of the “unwilling or unable” test? I doubt it. After all, not only is Iraq a member of the Arab League, it consistently denounced Turkey’s attacks on PKK bases in its territory between 2007 and 2008 as inconsistent with its sovereignty (see Ruys at p. 461). Iraq’s attitude toward the “unwilling or unable” test thus seems driven exclusively by political opportunism; there is no indication that it considers the test to represent customary international law.

Here is Deeks third argument:

Syria itself has not objected to these intrusions into its territory.

This factor seriously complicates Deeks’ argument. Another word for “not objecting” is “consenting.” And if Syria is consenting to attacks on ISIS in its territory, it is problematic to simply assume — as Deeks does — that all such attacks provide evidence in favour of the “unwilling or unable” test. The US and UK may not want to rely on Syrian consent to justify their attacks. But it seems likely that Jordan, Bahrain, Qatar, and the UAE are relying on Syrian consent rather than Syrian unwillingness or inability to justify their attacks on ISIS in Syria — particularly given their traditional narrow understanding of Art. 51.

Finally, it is important to note what Deeks says immediately after claiming that “[i]In view of these developments, the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine”:

Whether other European states ultimately commit to airstrikes in Syria will be informative; to date, states such as France, Denmark, and Belgium only have provided support to strikes against ISIS within Iraq, not Syria.

This is an important admission, because it means that a member of P-5 and two other important Western states have suggested they are not comfortable with using the “unwilling or unable” test to justify attacks on ISIS in Syria.

So, to recap: the US and UK clearly support the “unwilling or unable” test; Jordan, Bahrain, Qatar, and the UAE are likely basing their willingness to attack ISIS in Syria on Syrian consent; Iraq has a completely opportunistic approach to the “unwilling or unable” test; and France, Denmark, and Belgium seem to reject the test, even if they have not done so explicitly.

And yet we are supposed to believe that the “unwilling or unable” test “is starting to seem less controversial and better settled as doctrine”?

OTP Suspends Darfur Investigation

by Kevin Jon Heller

This is quite big news, and I hope it doesn’t get lost in the welter of voices discussing the collapse of the Kenyatta prosecution. Here is a snippet from the Washington Post:

The prosecutor for the International Criminal Court told the U.N. Security Council on Friday she is stopping her investigations in Sudan’s chaotic Darfur region for now because no one has been brought to justice in a decade and the council has done little or nothing to help.

Darfur’s situation is deteriorating and the brutality of crimes is increasing, but there have been no discussions with the council for “concrete solutions,” Fatou Bensouda said. She demanded a new approach.

Darfur was the council’s first referral to the ICC, which is seen as a court of last resort for genocide, war crimes and crimes against humanity.

[snip]

“It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I have said over and over again,” Bensouda told the council, which has been divided on how to press Sudan for cooperation. This was the 20th time the prosecutor has briefed the council on Darfur.

“Given this council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases,” Bensouda said.

It’s never good news when any OTP investigation falters, but it’s particularly disturbing in the context of the first Security Council referral to the ICC. Unfortunately, as many have noted (Mark Kersten, Dov Jacobs, me), the Security Council has an unfortunate tendency to treat the ICC like a political football — referring a situation to the Court when it needs to appear concerned about mass atrocity, then abandoning it when an attention-challenged international community has moved on to a different situation. Darfur is a perfect example of that troubling dynamic.

There is, however, a silver lining to the OTP’s decision to suspend the Darfur investigation: it indicates that Fatou Bensouda is getting tired of being Charlie Brown to the Security Council’s Lucy. I’m quite certain the Security Council would have preferred the Darfur investigation to continue ad infinitum: as long as the OTP is trying to investigate, the ICC will get the lion’s share of the blame for the failure to get Bashir. Now Bensouda has cleverly shifted the terrain, making it clear that the problem is the Security Council, not the ICC. Whether the Security Council will care is an open question — but at least Bensouda will take some of the heat off the ICC regarding Darfur. The last thing the Court needs now is additional bad publicity…

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view.  FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.

The Senate Torture Report as a Truth Commission

by Roger Alford

It so happens that I have been researching the South African Truth and Reconciliation Commission at the same time that the Senate has published an alarming report of abuse and torture committed by Americans in the name of national security. Without equating South African apartheid with the Bush Administration’s policies and practices, I thought that a few insights from the South African TRC are worth highlighting.

First, the Senate Report is a transition point for the United States. Following early revelations of torture, we have had a decade of obfuscation, but now we are moving in the direction of truth-telling. Whatever one thinks of it, the Senate’s actions represent a type of truth commission. Flawed and partisan, but nonetheless a truth commission. Of course, the South African TRC was not simply a truth commission, but also a commission committed to reconciliation and prosecution of key perpetrators. The next step for the United States will be to consider whether and how we approach the next stage in this sad saga, which will involve questions of reconciliation and responsibility.

Second, while the Senate Report has focused on the question of efficacy, we should first and foremost recognize that information released yesterday underscores the moral failure of those who committed unspeakable acts of torture. It will take some time, but we must come to accept that the acts committed in the name of protecting our nation have weakened it. Our standing in the world has been irretrievably diminished. A poem by Desmond Tutu, head of the South African TRC, which he read during the opening session of the TRC in 1996, bears repeating:

The world is wept.
Blood and pain seep into our listening; into our wounded souls.
The sound of your sobbing is my own weeping;
Your wet handkerchief my pillow for a past so exhausted it cannot rest–not yet.
Speak, weep, look, listen, for us all.
Oh, people of the silent hidden past,
let your stories scatter seeds into our lonely frightened winds.
Sow more, until the stillness of this land can soften, can dare to hope and smile and sing;
Until the ghosts can dance unshackled, until our lives can know your sorrows and be healed.

Third, regardless of whether there are prosecutions, at some point those responsible for the policies that led to torture will be invited to apologize. If the South African TRC is any guide, they will refuse. During the South African TRC, in the kindest way possible Desmond Tutu invited former Prime Minister P.W. Botha to apologize. Tutu said to Botha:

I speak on behalf of people who have suffered grievously as a result of policies that we carried out by governments, including the government that he headed. I want to appeal to him. I want to appeal to him to take a chance … to say that he may not himself even have intended the suffering…. He may not have given orders or authorised anything…. I am just saying that the government that he headed caused many of our people deep, deep anguish and pain and suffering…. If Mr. Botha was able to say: I am sorry that the policies of my government caused you pain. Just that. Can he bring himself to say I am sorry that the policies of my government caused you so much pain? That would be a tremendous thing and I appeal to him.

Botha heard this appeal in a court of law, and sat there unmoved and unresponsive. Later, former Prime Minister F.W. de Klerk–the one responsible for freeing Nelson Mandela and setting South Africa on a path toward democracy–was also asked to apologize. He admitted that there were “bad apples” and that security forces committed acts of murder, torture, rape, and assault. But he denied that his administration ever directly or indirectly authorised such actions. Tutu said of de Klerk:

To say I did not know… I find that hard to understand. I have … got to say that I sat there and I was close to tears. I feel sorry for him. I am devastated. [For him] to make an impassioned apology … and then to negate it. All that is required is to say that ‘we believed in this policy but it is a policy that brought about all of this suffering. It is a policy that killed people. Not by accident, deliberately. It was planned.’

His failure to apologize permanently altered Tutu’s estimation of de Klerk.

He would have gone down in history as a truly great South African statesman… What a great man he would have been…. He is a very bright lawyer who qualifies his answers carefully to protect his position, but in doing this he has steadily eroded his stature, becoming in the process a small man, lacking magnanimity and generosity of spirit.

So this is where we are. We are beginning to understand the truth of what happened. Our souls are heavy as we learn of the silent, hidden past. Eventually we will pursue more than just truth. We will discuss a formal truth and reconciliation commission, and will investigate who and how to prosecute the perpetrators of torture. We will hope upon hope for a sincere apology from statesmen, but have little confidence that one will be forthcoming.