Archive of posts for category
International Criminal Law

Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

by Emma Irving

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11th, rather than May 1st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.

Must Read: Darryl Robinson on the ICC’s “Inescapable Dyads”

by Kevin Jon Heller

Darryl is one of my very favourite international criminal law scholars. Indeed, I think he is the leading purveyor of what we might call “meta” ICL scholarship — scholarship that is concerned less with doctrine than with the nature of ICL reasoning and rhetoric itself. His article “The Identity Crisis of International Criminal Law” is a genuine classic, and I learn from everything he writes. So it is with great pleasure that I call readers’ attention to Darryl’s brilliant new article, just published in the Leiden Journal of International Law. It’s entitled “Inescapable Dyads: Why the ICC Cannot Win,” and here is the abstract:

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The article is a must-read for anyone interested in ICL. You can find the published version here (free until end of October 2015) and an earlier SSRN draft here.

Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.

Guest Post: The Complexity of International Trials Is Necessary

by Stuart Ford

[Stuart Ford is an Assistant Professor at The John Marshall Law School.]

International criminal trials are extremely complex. The average trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) takes 176 trial days and involves more than 120 witnesses and 2,000 exhibits. See here at table 2. In comparison, the average criminal trial in the United States takes less than one day, and even the average murder trial takes only three or four days. Id. at 53-55. As a result, there is a widespread belief that international criminal trials are too complex, and international tribunals have come under enormous pressure to reduce that complexity. See here at Part I.

The ICTY, for example, made a number of changes to the Rules of Evidence and Procedure that were intended to reduce trial complexity. See, for example, here. Professors Langer and Doherty found that those changes failed to reduce the complexity of the ICTY’s trials, but why? The answer is important because if we understood what drove the complexity of international trials, perhaps we could find ways to reduce their complexity (and the associated cost) without undermining the purposes of international criminal justice.

My latest project attempts to answer that question by taking the complexity data I collected for my earlier work on the efficiency of international criminal courts and using it to build a model of trial complexity. Trial complexity is the response variable in the model, while the explanatory variables were based on a number of hypotheses about what might cause trial complexity. The hypotheses are summarized below:

Hypotheses
H1 Complexity increases as the number of accused tried together increases
H2 Complexity increases as the seniority of the accused in the political and military hierarchy increases
H3 Complexity increases as the total number of counts in the indictment increases
H4 Complexity increases as the number of crime sites in the indictment increases
H5 Complexity increases if the accused are charged with genocide
H6 Complexity increases is the accused are charged as members of a joint criminal enterprise (JCE)
H7 Complexity increases if the accused are charged under a theory of superior responsibility
H8 Complexity decreases if the accused are charged as a direct perpetrators

The association between the hypotheses and trial complexity was then tested using a multiple regression model. The results of the regression are presented below:

Model Results
Variable Effect Size Significant
Total Accused   0.077 Yes
Seniority   0.065 Yes
Total Counts   0.0061 Yes
Crime Sites   0.0006 No
Genocide   0.066 No
JCE   0.048 No
Superior Responsibility -0.088 No
Direct Perpetrator -0.20 Yes

The results suggest that international tribunals will have a very hard time reducing the complexity of their trials. First of all, the number of crime sites is not significant in the model. Thus simply permitting the judge to impose limits on the number of crime sites in the indictment will probably not be successful. The number of counts in the indictment is statistically significant, but the magnitude of the effect is very small, indicating that any reduction in the overall complexity from imposing limits on the number of counts would also be small. Neither the mode of liability used to prosecute the accused or the legal qualification of the charge had a statistically significant effect on trial complexity either.

In contrast, two factors are both statistically significant and have a large impact on the resulting trial complexity. The most important factor is the accused’s seniority within their respective military or political hierarchies. The complexity that resulted from increasing the accused’s seniority by one level was approximately equivalent to adding an additional ten counts to the indictment. Direct perpetration also had a large impact on overall complexity. Accused who were alleged to be direct perpetrators of violence (i.e., they carried it out themselves), had significantly shorter trials.

The figure below shows the relative contributions of the various factors to the complexity of the median ICTY case. The seniority of the accused and whether the accused was a direct perpetrator account for the majority of the resulting trial complexity.

sford

So, what does this all mean? The results suggest that the key factor driving the complexity of international criminal trials is the geographic and organizational distance of the accused from the crimes they are alleged to be responsible for. Indirect perpetration, where the accused is alleged to be legally responsible for crimes that were physically carried out by others, is a hallmark of international criminal trials. Such individuals tend to be distant, both organizationally and geographically, from the violence that results. (In the model, this distance is captured by the seniority and direct perpetration variables.) As a result, proving that they are criminally responsible for the acts of the direct perpetrators is very difficult and accounts for the bulk of the trial’s complexity.

This has implications for the future of international trials. For at least the last ten years, international tribunals have sought to reduce trial complexity by tinkering with the rules of procedure and evidence. This is unlikely to ever be successful because changes in the procedure cannot change the accused’s seniority or whether that person is a direct perpetrator.

There are some ways that trial complexity could be reduced, but they all come with fairly serious drawbacks. For example, courts could significantly reduce complexity by trying only low-level direct perpetrators. For policy reasons, however, international courts have been encouraged to focus on the most senior leaders. See, for example, here at 71-74. The result is very complex and expensive trials.

Making international criminal law a strict liability regime would also probably reduce complexity significantly by reducing the difficulty of linking accused to crimes from which they are organizationally and geographically distant. The cost, however, would be too high. Strict liability crimes are only appropriate when the violation is not associated with strong moral condemnation and the penalties are small. Serious violations of international criminal law, however, involve both stiff penalties and strong moral condemnation. Importing strict liability into international criminal law would be extremely undesirable, even if it did dramatically reduce trial complexity.

Another possibility would be to embrace symbolic charging at international tribunals. My calculations (see here at 38-42) indicate that using symbolic charging rather than representative charging would have reduced trial complexity at the ICTY by, at best, about a quarter. At the same time, it would have made it significantly harder for the court to achieve its goals by limiting its ability to inform the historical record, promote post-conflict reconciliation, and help victims find closure. These are important goals of international criminal justice and they are probably not worth compromising for a relatively modest reduction in trial complexity.

Finally, an increased use of plea bargaining might be another way to reduce overall trial complexity by simply avoiding the need to have some trials. Unfortunately, it is unlikely to have a significant impact because the cases involving the most senior leaders are the cases least likely to be resolved through a plea bargain and simultaneously the largest source of trial complexity. Prosecutors, for instance, are probably reluctant to enter into a plea deal with the individuals they believe masterminded the crimes. At the same time, senior accused are more likely to see their prosecutions in political terms and thus less likely to accept a plea deal. Indeed, the majority of plea bargains at the ICTY were accepted by low to mid-level accused.

The last ten years have seen most international tribunals focus their efforts on the most senior leaders, almost none of whom are direct perpetrators of violence.   The unsurprising result is trials of enormous complexity. Moreover, this complexity is largely out of the hands of individual judges and prosecutors. It arises from the policy decision to focus on senior leaders, and the model suggests it cannot be meaningfully changed by tinkering with the rules of procedure and evidence. The cost and complexity of international criminal trials is a necessary consequence of that policy decision.

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

Guest Post on the ICC and Palestine at Justice in Conflict

by Kevin Jon Heller

My contribution to the symposium is now available. Here is the introduction:

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

My thanks to Mark Kersten for posting it — and to Kirsten Ainley for organising the roundtable at the LSE on which it’s based.

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

Symposium on Palestine and the ICC at Justice in Conflict

by Kevin Jon Heller

Just in time for the activation of Palestine’s membership in the ICC, over the next few days Mark Kersten’s blog, Justice in Conflict, will be featuring posts by all of the people who participated in last week’s roundtable at the LSE — Mark, me, Kirsten Ainley, Dov Jacobs, Chantal Meloni, Leslie Vinjamuri, and Michael Kearney. Mark’s introductory post can be found here. I will post a link to a podcast of the LSE event as soon as it’s available. My contribution to the symposium should be up tomorrow or the next day.

Also, a hearty congratulations to Dr. Kersten, who has just been awarded a two-year SSHRC postdoc at the University of Toronto! London will miss him.

M. Cherif Bassiouni Weighs In on the Amanda Knox Extradition, and Gets It Wrong

by Julian Ku

I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one.  But just today, I realized that even someone as respected in the international law field as M. Cherif Bassiouni has opined on her extraditability in this OUP blog post from last April.  So maybe it’s OK after all, especially since Bassiouni’s view that she is not extraditable is (in my view) flatly wrong.

Bassiouni, a giant in the field of international criminal law and the author of the leading treatise on the international law of extradition, argues that Amanda Knox is not extraditable to Italy because of the admittedly unusual Italian criminal procedure that seems to subject defendants to convictions, acquittals, and then conviction again in violation of the rule of ne bis in idem (double jeopardy).

As I have explained, no US court has held that the double jeopardy protection of the Fifth Amendment would prevent an extradition because no U.S. court has applied that Fifth Amendment protection to actions by a foreign government.  In other words, no U.S. has held that a U.S. citizen can invoke the Fifth Amendment against the prosecution of a foreign government.  It is possible a court might do so, but there has been no signs of that so far.

But what really bothers me is that Bassiouni makes the same mistake that many other (far lesser in stature) legal commentators have made when he suggests that Article VI of the US-Italy Extradition treaty imposes a double-jeopardy requirement on the Italian government.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text).

With all due respect to Professor Bassiouni, this is not quite right. I point him and others to my first post on this subject and I re-do the discussion below.   Here is Article VI:

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

(Emphasis added.)

I don’t think it is possible to read this language as imposing a non bis in idem requirement on Italy, since Italy is not the “Requested Party” in the Amanda Knox case.  The only way Amanda Knox could invoke Article VI is if she has been “convicted, acquitted or pardoned,or has served the sentence imposed” by the United States, which is the “Requested Party.”  But Knox has not been charged or punished for this crime in the United States, so she can’t invoke Article VI.

As Bassiouni points out, the complexity of Italy’s criminal procedure could possibly violate the prohibition on non bis in idem contained in the European Convention on Human Rights.  I don’t know enough about Italy’s criminal procedure or the ECHR’s jurisprudence in this area to know if he is right, but I do know that this issue is not something that would be considered in the “extraditability” analysis by a U.S. court.  Knox could (and probably has) raised this argument in Italian courts, or directly before the ECHR. But it should not affect her extraditability.

Because of Bassiouni’s stature, his blogpost will be (and already has been) repeated by media reports for the proposition that Knox has a credible double-jeopardy defense to extradition.  But although they are right to cite Bassiouni as a leading authority on international extradition, he’s wrong on this one.

So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen) (UPDATED)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

[snip]

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

UPDATE: Janina Dill has posted her own response at Just Security. It’s excellent; interested readers should definitely check it out.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.