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Human Rights

“A Song of Good and Evil” and Telling International Law’s Story to a Broader Audience

by Chris Borgen

Philippe Sands is well-known as a scholar and as a practicing attorney. Now let’s add spoken word artist:

October 1946, Nuremberg.

Human rights lawyer Philippe Sands narrates an original piece that offers new insights into the lives of three men at the heart of the trial, with the music that crossed the courtroom to connect prosecutor and defendant.

A personal exploration of the origins of modern justice and the fate of individuals and groups, in images, words and music.

Bach, Beethoven, Rachmaninov, Aragon, Mizraki and Leonard Cohen, performed by acclaimed bass-baritone Laurent Naouri and renowned jazz pianist Guillaume de Chassy.

The piece is called “A Song of Good and Evil” and it will have its premiere in London on November 29th.

Engaging and educating as broad a public as possible about international law is no easy feat. For example, there have been depictions of international law and international legal themes in film, in television, and in fiction.  While at times the authors of such works may want to say something about international law or international institutions, such works have varying degrees of accuracy and educational value.  More often than not, “international law” or “the World Court” or “the UN” are just plot devices with very little consideration as to how any of these things actually work (or even what they are).  And I don’t know of many (actually, any other) international lawyers actively writing and performing theater pieces with legal themes.  (If there are, please let me know!)

Every work of art that depicts international law and international institutions affects the perception of some segment of the public about international law. Some of these books and films are produced in ignorance and stoke paranoia or the worst form of cynicism.  However, because so many of the stories of international law are profoundly human stories, they can also be the stuff of great art. Or the stuff of entertainment that also enlightens.

So, break a leg Philippe Sands! (And please have a performance in New York.)

Hat tip: John Louth for having mentioned this event.

Emerging Voices: New Citizenship Law Will Not End Race-based Statelessness in the Dominican Republic

by Jillian Blake

[Jillian Blake is an immigration attorney at a non-profit organization in Alexandria, Virginia. She is a graduate of the University of Michigan Law School and the Johns Hopkins School of Advanced International Studies (SAIS).]

In May, Dominican President Danilo Medina signed a new naturalization law aimed at restoring the rights of some who were stripped of their citizenship in a September 2013 Supreme Court ruling. The ruling held that those born in the Dominican Republic to undocumented immigrants, who are predominantly black and of Haitian origin, are not Dominican citizens and instructed the government to apply the ruling retroactively, going back to 1929. International human rights groups strongly condemned the decision as racist and xenophobic and argued it would render hundreds of thousands of people stateless. The Caribbean Community (CARICOM), an international organization made up of 15 Caribbean states, also denounced the ruling and suspended the Dominican Republic’s application for membership.

The new citizenship law, Law 169-14, was passed this spring in response to the international backlash against the Supreme Court decision. Law 169-14 establishes a regime to restore the citizenship rights of those born between 1929 and 2007 who are entered in the civil registry. Notably, the law excludes restoration of citizenship to those born between 2007 and 2010, the year the new Dominican Constitution first revoked jus soli citizenship, or citizenship based on where one is born. All those born after 2007, or who are not in the civil registry, are required to register as foreigners and will then have to apply for regularization and naturalization.

While the law could restore citizenship rights to thousands of people, it is far from a final victory against statelessness in the Dominican Republic. First, the law only addresses a small percentage of those impacted by the Supreme Court ruling. According to human rights groups roughly 24,000 of the more than 200,000 people rendered stateless could qualify to have their citizenship restored under the law, and even that restoration is not automatic. Part of the reason so few will be affected is that for many years hospitals and government agencies refused to issue birth certificates or other identity documents to children of parents of Haitian origin. Many children born in the Dominican Republic do not have birth certificates and/or are not listed in the civil registry. Any long-lasting solution will require hospitals to issue birth certificates for, and enter into the civil registry, all persons born in the Dominican Republic and recognize their citizenship. There also should be a national drive to document (as citizens) those born in the Dominican Republic who do not currently possess birth certificates.

Second, the new law is still premised on the illegal assumption that those born in Dominican territory are not citizens. This retrogression of established inter-American law, which recognizes jus soli citizenship, is not only illegitimate but could lead to the denial of rights elsewhere in the future. Third, given the racially-biased administration of past immigration and naturalization regulations in the Dominican Republic, there is a serious concern that even those entitled to the restoration of citizenship under the law will never actually be recognized as citizens. Fourth, the law requires those who are not in the civil registry to register with the government within 90 days after the law takes affect, which will exclude many who can’t register in time, especially the poor and those living in remote areas. Finally, the law will not restore citizenship to future generations born in the Dominican Republic, which will leave a perpetual system of statelessness in the country.

In an Article forthcoming in the Georgetown Journal of Law and Modern Critical Race Perspectives entitled, “Haiti, the Dominican Republic, and Race-based Statelessness in the Americas” I analyze the 2013 Supreme Court decision and long history of citizenship exclusion based on racial and ethnic prejudice in the Dominican Republic. (more…)

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

The al-Senussi Admissibility Decision in Two Quotes

by Kevin Jon Heller

Libya’s Foreign Minister, 21 May 2014:

There is a complete absence of the army and the police [in Libya], which are responsible for the security of the state. Armed groups are not under control…. State-building needs to build security institutions first and foremost because with no security there can be no investments, building a real state, nor an effective criminal justice system to protect rights and freedoms.

ICC Appeals Chamber, 24 July 2014:

The Appeals Chamber concluded that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi.

ECHR Rules Against Poland in CIA Black Sites Case

by Jens David Ohlin

In two decisions (here and here) handed down this morning, the European Court of Human Rights has found that Poland violated its obligations under the European Convention of Human Rights for its complicity in the United States’ running of a CIA black site and high-value detainees program on Polish territory.

One of the cases involved al-Nashiri, who was prosecuted before a U.S. military commission and the subject of protracted habeas litigation in the DC Circuit. He was accused of orchestrating the attack against the USS Cole in 2000. In federal court his lawyers raised the very interesting issue of whether there existed an armed conflict with al-Qaeda at that time (i.e. before 9/11), and whether a military commission could properly assert jurisdiction over a crime that was allegedly committed before (in their view) the commencement of the armed conflict.

Nashiri was captured in Dubai in 2002, transferred to a CIA prison in Afghanistan (called the “Salt Pit”), then to a CIA facility in Bangkok (called “Cat’s Eye”) where detainee Abu Zubaydah (the subject of the other case) also was held. Both were then transferred to the CIA black site in Poland. After his time in Poland, he was transferred briefly to Morocco on his way to Guantanamo Bay, Cuba.

The decision goes into extensive detail of the CIA interrogation program, including a review of internal CIA documents explaining the interrogation methods that officers were authorized to use against detainees, as well as the unauthorized techniques that were sometimes used. The court concluded that (para. 417):

Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1)  on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2)  from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty;

(3)  during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4)  on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.

The ECHR then concludes that Poland was aware of (and complicit) in the CIA activities:

442.  Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions:

(a)  that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory;

(b)  that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also ElMasri, cited above, §§ 217-221).

443.  Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined …. in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.

The Court holds that Poland violated Article 3 of the Convention for its failure to adequately investigate the mistreatment, and for failing to ensure that “individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals .”  Again, here is the Court’s holding (para. 517):

Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held aboveon the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see paragraph 452 above and El-Masri, cited above, §§ 206 and 211).

The Court also found a violation of the article 5 prohibition against arbitrary detention (para. 532), the article 8 prohibition against interference with family life for holding him incommunicado (para. 540), the article 13 requirement of an effective domestic remedy (para. 551), and the article 6 prohibition against an unfair trial (para. 569).

The last holding on article 6 required the Court to conclude that the petitioner’s trial before a U.S. military commission would be unfair — which is a substantial legal determination. Unfortunately, the Court’s analysis on this point is incredibly thin, and relies mostly on the U.S. Supreme Court’s determination in Hamdan that the creation of the tribunals was procedurally defective and violated Common Article 3 of the Geneva Convention, without much independent analysis. There is no discussion of post-Hamdan military commission reforms.

Finally, the Court concludes that Poland violated its Protocol 6 (abolition of the death penalty) obligations because of the risk that the petitioner would be subject to capital punishment before a U.S. military commission (para. 579).

Feiglin Is Advocating Crimes Against Humanity and War Crimes, Not Genocide

by Kevin Jon Heller

Twitter is abuzz with claims that Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, has called for the commission of genocide against the Palestinians. Here is what he said, in relevant part:

Conquer – After the IDF completes the “softening” of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.

Elimination- The GSS and IDF will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.

Feiglin’s comments are vile, horrifying, and unfortunately all too common in Israel’s increasingly toxic right-wing political culture. As awful as they are, though, they do not amount to incitement to genocide, because Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide. There are five types of genocidal acts: (1) killing members of a group; (2) causing serious bodily or mental harm to members of a group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group. The actions Feiglin advocates come closest to (3), but he makes clear that he is not advocating displacing Palestinians into a location where they could not physically survive, which would be genocide. (A pre-Genocide Convention example is the Armenian genocide, in which the Ottoman empire not only ethnically cleansed the Armenians, but drove them into the Syrian desert to die.) In short, Feiglin is advocating that Israel commit not genocide but crimes against humanity.

Feiglin is also, it’s worth noting, urging Israel to commit war crimes against the Palestinians. Here is another one of his suggestions:

Defense – Any place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage’.

It is ICL 101 that it is a war crime to intentionally launch an attack knowing that it will — in the words of the Rome Statute — “cause incidental loss of life or injury to civilians… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” In making that determination, an attacker must take into account any civilian who will be incidentally killed in an attack, even one who is serving as a human shield. Two wrongs do not make a right in ICL. By urging Israel to ignore the presence of civilians, therefore, Feiglin is urging Israel to launch attacks that are highly likely to be disproportionate.

Most Important Issues in International Criminal Justice Today?

by Kevin Jon Heller

That’s the question asked by the blog of Oxford University Press. All of the short answers, provided by scholars ranging from Ruti Teitel to Bill Schabas, are worth a read. Here’s mine:

In my view, it is time to begin to question whether the International Criminal Court will ever play a major role in the fight against impunity. This is not an issue of bad management, poor decision making, or anything else epiphenomenal and potentially fixable. Instead, it’s a question of institutional design: it is simply unclear whether the Court, by aiming to keep watch over both the victors and the vanquished, will ever be able to muster the kind of international support – from states, and most importantly from the Security Council – that it needs to conduct credible investigations and prosecutions. There is reason for scepticism, given the Court’s inability to prosecute both rebels and government officials in even one conflict. Indeed, it’s difficult to avoid wondering: for all its flaws, is victor’s justice the only international criminal justice possible? Is selectivity an inherent part of an international criminal tribunal that works?

You can find all of the answers here.

Meanwhile, over at ABC News…

by Kevin Jon Heller

BsJXdWkCYAEhdi_Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then shows a still photo of two haggard men carrying clothes in front of a destroyed building and says, “here is an Israeli family trying to salvage what they can.”

There’s only one problem with Sawyer’s report: the explosions are in Gaza, the result of IDF airstrikes, and the men are Palestinian, not Israeli.

Welcome to the mainstream media’s even-handed coverage of the Israeli/Palestinian conflict.

Name That Pinko!

by Kevin Jon Heller

What Israel-hating, Hamas-loving lefty said the following on Facebook?

Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by the current government, whose essence is: Let’s frighten the public over everything that’s happening around us in the Middle East, let’s prove that there’s no Palestinian partner, let’s build more and more settlements and create a reality that can’t be changed, let’s continue not dealing with the severe problems of the Arab sector in Israel, let’s continue not solving the severe social gaps in Israeli society. This illusion worked wonderfully as long as the security establishment was able to provide impressive calm on the security front over the last few years as a result of the high-quality, dedicated work of the people of the Shin Bet, the IDF and the Israel Police as well as the Palestinians whose significant contribution to the relative calm in the West Bank should not be taken lightly.

However, the rapid deterioration we’re experiencing in the security situation did not come because of the vile murder of Naftali, Eyal and Gil-Ad, may their memories be blessed. The deterioration is first and foremost a result of the illusion that the government’s inaction on every front can actually freeze the situation in place, the illusion that “price tag” is simply a few slogans on the wall and not pure racism, the illusion that everything can be solved with a little more force, the illusion that the Palestinians will accept everything that’s done in the West Bank and won’t respond despite the rage and frustration and the worsening economic situation, the illusion that the international community won’t impose sanctions on us, that the Arab citizens of Israel won’t take to the streets at the end of the day because of the lack of care for their problems, and that the Israeli public will continue submissively to accept the government’s helplessness in dealing with the social gaps that its policies have created and are worsening, while corruption continues to poison everything good, and so on and so on.

But anyone who thinks the situation can tread water over the long run is making a mistake, and a big one. What’s been happening in the last few days can get much worse — even if things calm down momentarily. Don’t be fooled for a moment, because the enormous internal pressure will still be there, the combustible fumes in the air won’t diminish and if we don’t learn to lessen them the situation will get much worse.

The pinko in question would be Yuval Diskin, the director of Israel’s Shin Bet from 2005 to 2011. Further proof that being outside of government is conducive to honesty — especially when the government in question is overseen by someone like Netanyahu.