Archive of posts for category
International Criminal Law

Emerging Voices: The Preliminary Examinations in Iraq: A Net Loss for the ICC’s Political Capital

by David Benger

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.]

The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.

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Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court

by Rosemary Grey

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.
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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.

Control Matters: Ukraine & Russia and the Downing of Flight 17

by Jens David Ohlin

The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

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.

Why “Lawfare” Won’t Deter China in the South China Sea

by Julian Ku

Harry J. Kazianis, the managing editor of The National Interest, has a smart post discussing the risk that the U.S. is taking if it tries to take more aggressive action to counter China in the South China Sea.  Essentially, he argues the U.S. has no effective strategy to counter China’s “non-kinetic” strategy to subtly alter the status quo by using non-military assets to expand control and influence in the region.  I agreed with Kazianis all the way until he offered his own solution:

There only seems one solution to the various territorial disputes in the region—specifically, what some are calling “lawfare.” All of the various claimants that have disputes with China in the South China Sea should appeal collectively to any and all international bodies that could possibly hear their claims. Only together can they hope to get Beijing to halt its aggressive actions.

He goes on to cite the Philippines claim against China in the UN Law of the Sea arbitration system as a possible model for other nations.

“Lawfare” or international law litigation is not going to be an effective counter to China here for at least two reasons (one legal, one policy-based):

  • 1) China has opted out of any “compulsory” system of international dispute resolution that would rule on its territorial claims in the South China Sea (or anywhere, for that matter).  This “opt-out” is perfectly legal and may very well prevent the Philippines from even making their full case to the UNCLOS arbitration tribunal.  There are no other legal institutions that have jurisdiction.  So the only way “lawfare” can work here is if China consents to arbitration. But if Kazianis is right that this is a strategy by China’s neighbors to block its expansion, then why would China ever agree to arbitration?
  • 2) Even if compulsory jurisdiction were somehow found in one of these international bodies, there is very little chance that China would feel compelled to comply with any negative ruling.  This is not a China-specific problem, but rather a problem almost every country faces when considering arbitration over territorial disputes.  The effectiveness of tribunals in these contexts is highly limited since they depend for enforcement on the individual state-parties.  This is why voluntary arbitration tends to work better than compulsory arbitration in these kinds of territorial disputes.  The U.S. and Canada, for example, have managed to settle (most of) their often contentious land and maritime borders through a combination of non-arbitral commissions, and then special bilateral arbitrations.  In the famous “Gulf of Maine” case, the U.S. Senate actually approved a special treaty with Canada to send a maritime dispute to a special chamber of the ICJ.  Although clunky, this model is far more likely to succeed in getting state compliance.

So while I agree with Kanianis and other commentators that China needs to be deterred from its current strategy in the South China Sea, I am fairly confident the use of “lawfare” will not be a way to accomplish this goal.

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.

Why Did Katanga Drop His Appeal? And Why Did the OTP?

by Kevin Jon Heller

Many people are surprised that Germain Katanga has dropped his appeal, particularly given Judge Van den Wyngaert’s savage dissent. I’m not surprised in the least, because it locks in his sentence, which the OTP planned to appeal. Katanga’s 12-year sentence is even shorter than Lubanga’s, and he has already spent seven years in pre-trial detention. In fact, he’ll be eligible for sentence review in little more than a year.

To be sure, if Katanga thought he had a good chance of overturning his conviction on appeal, I’m sure he would have rolled the dice. But I think his assessment of that likelihood was spot-on. As I’ve noted before, the verdict was a disaster for the OTP — had the Trial Chamber majority not appointed itself backup prosecutors, Katanga would have walked. And despite Judge Van den Wyngaert’s impressive dissent, the Appeals Chamber was very unlikely to disapprove of the Trial Chamber’s unfair use of Regulation 55. After all, the Appeals Chamber has already issued two horrible decisions affirming its applicability.

The big question in my mind is why the OTP agreed to drop its appeal, which was obviously part of a quid pro quo. Unlike Katanga, the OTP had little to lose by appealing — there is no way the Appeals Chamber would have reduced Katanga’s sentence, and for the reasons above it’s equally unlikely it would have overturned his conviction.

If any readers know — or can intelligently speculate about — the OTP’s motivations, please weigh in below.

Syria and International Justice at the LSE

by Kevin Jon Heller

I will be participating in a roundtable about Syria and international justice next Monday night at the LSE. It’s free and open to the public, so I hope at least a few OJ readers will come. You can also send questions to the following hashtag: #LSESyriaICC. We will try to answer at least a few of them!

Here are the event details:

Syria and International Justice
LSE Centre for International Studies Dialogue
30 June 2014
6.30-8pm at LSE
Thai Theatre
New Academic Building

With a draft Security Council resolution to refer the situation in Syria to the International Criminal Court vetoed, what, if anything, should the international community or other interested actors do to achieve justice in Syria?

SPEAKERS

Kevin Jon Heller, Professor of Criminal Law, SOAS. @kevinjonheller
Dov Jacobs, Asst Professor of Int’l Law, Grotius Centre. @dovjacobs
Mark Kersten, Researcher, LSE. Justiceinconflict.org. @MarkKersten
Jason Ralph, Professor of Int’l Relations, University of Leeds. @JasonRalph4
Leslie Vinjamuri, Senior Lecturer in IR, SOAS. @londonvinjamuri

CHAIR

Kirsten Ainley, Director of LSE CIS. @kirstenainley