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Human Rights

The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, The Center for Global Affairs, NYU-SPS. She attended ICC ASP 14 on behalf of the American NGO Coalition for the ICC and the American Branch of the International Law Association International Criminal Court Committee. The opinions expressed are not necessarily those of AMICC or the ABILA.]

From November 18-27, delegates of states that are parties to the International Criminal Court’s Rome Statute, as well as NGOs and delegates of non-State Parties gathered in The Hague for the 14th annual Assembly of States Parties meetings.

While much of the ASP’s business carried on as usual, two threats to the Court’s work emerged.
The first came in the form of a Kenyan proposal seeking an interpretation or reaffirmation that Rule 68’s amendment made at the ASP in 2013 would not apply retroactively. On its face, the measure Kenya proposed looked harmless enough. The ASP is indeed the body before which amendments to the ICC’s Rome Statute and Rules of Procedure and Evidence are to be brought after prior presentation to the New York working group on amendments.

But the unstated purpose behind Kenya’s proposal appeared to relate to the pending cases against Kenyan Deputy President William Ruto, and Joshua Arap Sang. Each is charged with crimes against humanity in connection with post-election violence in Kenya’s 2007-8 presidential elections in which over 1,000 persons died. (The measure may also have been indirectly aimed at insuring that a prior case against Kenyan President Uhuru Kenyatta – as to whom the charges have been withdrawn without prejudice – will not be reinstated.) A likely goal is to ensure that prior recorded witness testimony of witnesses who subsequently became “unavailable” could not be used in evidence. Given serious and credible allegations of witness tampering and disappearances—there are pending proceedings related to attempts to corrupt ICC witnesses in the Kenya cases—the proposal could be aimed at keeping out information potentially relevant to pending trials. To make matters worse, the issue of whether the Rule 68 amendment applies retroactively is currently pending before the ICC’s Appeals Chamber in the Ruto & Sang case.

In oral remarks responding to Kenya’s proposal on Thursday November 19 and then again in the closing plenary session, various States made strong statements about the need to preserve the Court’s independence and not interfere in matters pending before the Court. Yet, it was disheartening to later see delegates willing to attempt to mollify the Kenyan delegation by negotiating language favorable to the Kenyan position. If a matter really is sub judice, there should be no ASP role, period. (The only bright spot is that the language negotiated was included in a final report summarizing discussions of the Assembly, and not in a formal assembly resolution.) What the Court will eventually make of all of this, is, of course, another matter – as the judges do not necessarily need to accept even Rule or Statutory amendments from the ASP if they deem them inconsistent with the Rome Statute or beyond the ASP’s authority. Moreover, judges would likely accord language from a report little weight, if any.

Kenya’s second proposal was to develop an ad hoc mechanism of independent jurists to advise the Prosecutor in her selection of Prosecution witnesses. There is absolutely no precedent for such a measure, which clearly is aimed at stymying the Prosecutor’s work. Such an attempt to interfere with Prosecutorial independence appropriately met with little enthusiasm from other state delegations.

The theatrics of Kenya’s presentation of these proposals on November 19 were amplified when the more than 80-person Kenyan delegation applauded loudly to all of Kenya’s statements. Most of the rest of the room then applauded the interventions by other states who insisted on the Court’s independence, and not interfering in matters pending before the Court. The effect was somewhat like an audience at a sporting event, cheering their two respective teams. It seemed unseemly to say the least, and one can only wonder at the choice of allowing a delegation to be that large. Most other States sent at most a handful of representatives.

Another threat to the Court’s work was far more ordinary and predictable but also serious: seven States Parties holding out not to give the Prosecutor the budget she requested as necessary to do her work. With the Court active in 8 situation countries, with 23 pending cases, and preliminary examinations across the globe, now is not the time to nickel and dime the Prosecutor of the world’s worst atrocity crimes. The Court has a bigger docket than it ever has had before. The blame here also should be extended to the U.N. Security Council, which referred two situations to the Court (those in Libya and Darfur) but refused to pay for them, and has failed to insure that any of the outstanding arrest warrants or other transfers related to the cases are executed. At the ASP, the Prosecutor had requested a budget increase of 17%, but only received a 7.1% increase. If she now has to curtail meritorious investigations, which is anticipated, we have only States to blame, and not the Prosecutor.

These ASP gatherings of NGO’s and State delegates from around the world are in some ways heartening – to see a global network of individuals committed to international criminal justice, and the prosecution of the worse atrocity crimes through the ICC. Complementing the formal sessions are numerous “side events” that range the gamut from attempting to ensure justice locally in Africa, to strengthening the ICC’s work related to victims, and attempting to ensure accountability for crimes in Syria. Yet, the ASP meetings are also disheartening to see such attempts at political interference in the Court’s work (and budgetary shortsightedness). It is also disappointing, although perhaps understandable, to see States attempting to pacify delegates in order to avoid having their State potentially withdraw from the Rome Statute. One wonders whether that Faustian bargain is worth striking.

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

(more…)

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

McAuliffe on the ICC and “Creeping Cosmopolitanism”

by Kevin Jon Heller

As I was researching a new essay on complementarity, I stumbled across a fantastic article in the Chinese Journal of International Law by Paidrag McAuliffe, a Senior Lecturer at the University of Liverpool School of Law. Here is the abstract of the article, which is entitled “From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism”:

Though it was initially presumed that the primary role of the International Criminal Court (ICC) would be a residual one of monitoring and ensuring the fulfilment by the State of its obligations under the Rome Statute, it has over time moved towards a more activist “burden-sharing” role. Here, the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators. Since at least 2006, the Prosecutor has committed to a formal policy of inviting and welcoming voluntary referrals as a first step in triggering the jurisdiction of the Court. The judges on the Court have approved these referrals, while the broader academic and activist communities welcomed this more vertical relationship with national jurisdictions and, significantly, have provided the intellectual justifications for it. Burden-sharing, a concept unmentioned at the Rome Conference establishing the ICC, is presented as an unproblematic, natural and organic emanation from the Statute. This article argues that this development was not in fact inevitable or mandated by the Rome Statute. It was chosen, and in justifying this choice, familiar modes of cosmopolitan-constitutionalist treaty interpretation fundamentally premised on the field’s virtue and indispensability have operated to enable a Court established as a residual watchdog to become a workhorse in individual situations by assuming the preponderance of responsibility for combating impunity.

I found myself repeatedly nodding my head in agreement while I read the article, particularly when it discussed how judges, prosecutors, scholars, and activists have relied on ambiguities in treaty interpretation to push a particular activist agenda at the ICC. The article reminds me of the critical ICL scholarship by two of my favourite scholars, Fred Megret and Darryl Robinson — both of whom the article cites quite often.

The article is a must read for anyone interested in the ICC and ICL scholarship more generally. You can find it here.

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”

[snip]

Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

My Talk on the ICC’s Investigation into the Situation in Georgia

by Kevin Jon Heller

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I’m in the middle of a week-long trip to Georgia, where I’m giving nine lectures in five days to the military and university students. (Thanks, Anna Dolidze, Deputy Minister of Defence and friend-of-OJ!) I’m talking about perfidy a couple of times, but most of the lectures — not surprisingly — are about the OTP’s request to open a formal investigation into the situation in Georgia. I’ve greatly enjoyed the lectures I’ve given so far, at Free University Tbilisi and at the Ministry of Defence. The questions have been uniformly intelligent and challenging. Today I’m heading to Gori to give lectures at the National Defence Academy.

In any case, a reader emailed me and asked whether I could send her the notes of my talk and the accompanying PowerPoint slides. I was happy to oblige, and I thought I might upload both to Opinio Juris, in case anyone else would like to see them. The notes are here, and the accompanying PowerPoint slides are here.

Academic BDS and Individual Israeli Scholars

by Kevin Jon Heller

Guardianadvert4palestine-FINALv2-page-001I’ve received a few emails over the past couple of days wondering why I have not joined the now 500 scholars at UK universities who have pledged to boycott Israeli universities. The answer is that although I wholeheartedly support BDS in its economic and cultural forms, I am much more ambivalent about academic BDS. I agree with the boycotters that Israeli universities are deeply complicit in Israel’s systematic oppression of Palestinians. I’m fully aware that the too many Israeli academics either support that oppression or at least generally remain silent about it. And I know that most people who criticise academic BDS on “academic freedom” grounds could not care less about the academic freedom of Palestinians. But I simply cannot get past my belief that the boycott, at least as it is currently structured, is unfair to the (unfortunately small) number of Israeli academics who are brave enough to speak out against Israel’s policies.

To be sure, those who support the boycott insist that it targets Israeli universities, not individual Israeli scholars. The statement by the UK academics, for example, says that they will “continue to work with our Israeli colleagues in their individual capacities.” Similarly, the PACBI Guidelines for the International Academic Boycott of Israel provide that “[m]ere affiliation of Israeli scholars to an Israeli academic institution is… not grounds for applying the boycott” and clearly notes that Israeli academics can use their individual research budgets “in support of academic activities, such as attendance of international conferences and other academic events,” as long as they do not have to acknowledge that their funding comes from an Israeli institution.

I’m glad that the UK academics and PACBI are sensitive to the distinction between Israeli universities and Israeli scholars. But I still think the PACBI guidelines (which the UK statement endorses) harm Israeli scholars, including those that are critical of Israel, to an extent that makes it impossible for me to endorse academic BDS. Here, in relevant part, is what Guideline 10 prohibits (emphasis in original):

10. Serving as external reviewers for dissertations, writing recommendations or other forms of refereeing such as advising on hiring, promotion, tenure, and grant-making decisions at Israeli universities. International academics who choose to review the academic work of faculty or students at Israeli universities on a personal basis are not conflicting with the boycott guidelines, so long as their names are not used by those universities in any way (to gain legitimacy). Accepting to be on a dissertation, referee or review committee appointed by or serving an Israeli university, however, directly conflicts with the institutional boycott of these universities, as it legitimates Israel’s academic standing around the world. The boycott also applies to writing tenure or promotion recommendations addressed to university administrators.

I fail to see how  these restrictions target Israeli academic institutions, not individual Israeli scholars. If a left-wing Israeli scholar is already a full professor, academic BDS will not have a profound impact on her career. But any scholar is who is more junior is directly harmed by Guideline 10. If I supported academic BDS, I could not co-supervise a PhD student at an Israeli university or serve as her external examiner. Once she obtained her PhD, I could not help her get a job at an Israeli university. And after she became a lecturer, I could not write a letter on her behalf advocating her promotion or tenure.

These restrictions could easily be fatal to the career of a left-wing Israeli scholar — especially a more junior one. Given Israel’s increasing suppression of even the most tepid criticism of its policies, including (yes) by University administrations, it is unlikely that such a scholar will find many senior Israeli academics willing to supervise her dissertation, help her get a job in the Israeli academy, or support her promotion and tenure. And Guideline 10 prohibits non-Israeli scholars from providing her with that support. So the young Israeli scholar will end up facing a difficult choice: either find a PhD program or academic position overseas — which she may not be able to do, whether for family/financial reasons or because she wants to fight for change from within Israel — or abandon an academic career.

That’s troubling enough, but the systemic effects of academic BDS on the presence of left scholars in the Israeli academy are even more troubling. Academic BDS obviously has no effect on young right-wing scholars, who already outnumber their left-wing counterparts. Young right-wing scholars will have no problem finding more senior Israeli and non-Israeli scholars to supervise their dissertations, help them get jobs, and support their promotion and tenure. So academic BDS will simply ensure that, over time, then, left-wing scholars become more scarce in Israeli universities while right-wing scholars become ever more common.

Perhaps that’s okay. Perhaps the need to pressure Israel to change its policies is worth preventing left-wing Israelis from pursuing academic careers and ensuring that the Israeli academy becomes even more right-wing than it already is. If so supporters of academic BDS should say so openly, instead of claiming that the boycott doesn’t affect individual Israeli scholars. It does — which is why I can’t support it.

Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:

 

 

The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

OTP Formally Requests First Non-African Investigation

by Kevin Jon Heller

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC’s press release:

The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between the breakaway region of South Ossetia and Georgia degenerated into an armed conflict, which also involved the Russian Federation.

The Prosecutor finds a reasonable basis to believe that war crimes and crimes against humanity were committed during in the context of the armed conflict. This includes alleged crimes committed in the context of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

The information available to the Office of the Prosecutor indicates that between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign. The Office of the Prosecutor alleges, based on the information in its possession, that these offences, together with attendant crimes of looting and destruction of civilian property, were committed on a large scale as part of a plan and in furtherance of a policy to expel ethnic Georgians from the territory in South Ossetia. As a result, the Prosecutor estimates that the ethnic Georgian population living in the conflict zone was reduced by at least 75 per cent.

The Prosecutor also finds a reasonable basis to believe that both South Ossetian and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission.  Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more.  In a separate incident, ten Russian peacekeepers were reportedly killed and 30 wounded as a result of the attack against their facility by Georgian forces. The Russian peacekeeping force’s base was reportedly destroyed, including a medical facility.

The OTP’s formal request is 162 pages long, not counting the numerous annexes, so I won’t have substantive thoughts on the investigation for a while. I will just note that the request, as summarised by the Court’s media office, generally tracks the OTP’s 2014 Preliminary Examination Report, with one notable exception: the Georgian attack on the Russian peacekeepers. Given that the 2014 Report concluded that information about the attack was “inconclusive,” the OTP’s preliminary examination must have uncovered enough additional evidence of Georgian responsibility that Bensouda felt comfortable including it in her request for a formal investigation.

Assuming that the PTC approves Bensouda’s request, which seems highly likely, Georgia will obviously become the first non-African situation to be formally investigated by the ICC. The timing of the request is, of course, more than a little propitious, given that the ANC has been threatening to withdraw South Africa from the ICC because of its supposed anti-African bias. I doubt that the mere act of opening a non-African investigation will mollify the ANC and other African leaders; I imagine nothing short of actual charges against a suspect will have much impact. But the Georgia investigation is clearly a step in the right direction.

More soon!

PS: It’s worth noting that the Georgia request is almost four times as long as the request the OTP filed in 2009 with regard to Kenya — and that isn’t counting the numerous annexes in the Georgia request. It would seem that the OTP has learned its lesson from the Kenya fiasco. Recall that, with regard to Kenya, the PTC immediately asked the OTP to provide it with a great deal of supporting information. That kind of information appears to already be included in the Georgia request, which is smart prosecutorial practice.